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OUR 



TREATY WITH SPAIN 



TRIUMPHANT DIPLOMACY 



ANNOTATED BY 



Charles Henry Butler 



WASHINGTON LAW BOOK COMPANY 

1422 F St., N. \V. 

WASHINGTON, D. C. 

1898 



'O 



/ JAN 

I 7 

^^'''? OF S-^>' 






copyright. 1898 
Charles Henry Butler 



OUR TREATY WITH SPAIN. 



TRIUMPHANT DIPLOMACY. 



The event for which, the country has been waiting with the 
keenest expectancy and impatience has at last transpired. The 
Treaty of Peace by which the war with Spain, temporarily ended 
by the Protocol of August 12th, has been finally terminated, 
peace restored to the two countries, and freedom and liberty as- 
sured to those whom this country was bound to, and did, protect, 
has been concluded and exchanged by the High Commissioners 
representing the two sovereign nations engaged in the struggle. 

All that now remains to make the treaty the supreme law of 
the land is for the President to transmit it for ratification to the 
Senate of the United States, in accordance with those provisions 
of the Federal Constitution which clothe him with "power, by 
«nd with the advice and consent of the Senate, to make treaties, 
provided two-thirds of the Senators present concur," and which 
also provide that "all treaties which shall be made under the au- 
thority of the United States shall be the supreme law of the 
land," and for the Senate to formally ratify it. 

The High Commissioners of the United States will, on their 
arrival from the scene of their labors, deliver the original draft 
of the treaty to the President, and thereupon will be relieved 
from further duties as Commissioners,, although three of them 
will, in their capacity as Senators, have the further duty of vot- 
ing for the ratification of the fruit of their labors by the body of 
which they are such distinguished members. 

While the exact text of the treaty may, pending its ratification 
and pursuant to custom-, remain undisclosed officially, the fact 
that it has already been published in Spanish newspapers has 



4 OUR TREATY WITH SPAIN. 

made its contents an open secret, for there is no apparent reason 
to doubt the general accuracy of the text which was obtained and 
published through the enterprise of the newspapers. 

This annotation of the treaty, therefore, is published on the 
assumption that the "Sun" text is correct, and, as it will be impos- 
sible to obtain any official copy of the treaty until it shall h^e 
been published, either by direction of the President or the Sen- 
ate, this text is the only one ayailable at the present time. 

Some discrepancies will undoubtedly appear, as, according to 
press accounts, the text published was an independent translation 
of the Spanish version of the treaty. Such discrepancies, how- 
ever, will probably not materially affect the general description 
of the concessions made in, and the principles established by, the 
treaty. 

The negotiation of this treaty is a triumph of American diplo- 
macy, or, to use a more proper expression, let us say, of Ameri- 
can statesmanship, and the President and the High Commission- 
ers who represented the country are to be congratulated upon the 
success of the final struggle of the war. 

As great a victory has been won as when Commodore, now 
Admiral, Dewey destroyed the entire Spanish fleet in Cavite Bay 
■with the indirect loss of only two men; as when Admirals Samp- 
son and Schley and the commanders of the vessels in the squad- 
ron off Santiago sank Cevera's fleet with the loss of only one man; 
as when Santiago, and thereby, eventually, the whole of Cuba, was 
captured with a loss of less than ten per cent of the corresponding 
loss in the Civil War, when the number of men engaged, and the 
time consumed, in the conflict are considered. 

Witli the treaty., as was the c.ise with the victoi'ies of our naval 
and military luroes, pwrvtliing ha< hctii gained for the'irnited 
States, while nothing has been lost or surrendered, nor have any 
indefinite obliaations been assumed, or liabilities created, except 
ill so far as the United States have very properly agreed to judge 
and settle the claims of their own citizens for such losses as they 
have innocently incurred through Spanish misrule in Cuba. 



OUE TEEATY WITH SPAIN. 5 

Let critics say what they will about the necessity of special edu- 
cation for our diplomats, there are no greater schools of diplomacy 
in the world than the Department of State, and the Committees 
on Foreign Relations and Foreign Affairs in the two Houses of 
Congress, and in the present instance, all the members of the 
Commission, as well as every one associated with them, have 
taken the full course in practical diplomacy, either in the Depart- 
ment, one or both of those Committees, or in active diplomatic 
ser\dce; certainly the treaty is evidence of the thoroughness of 
their education; throughout all the negotiations there has also 
been felt the influence of the guiding hand of him who, during 
the entire conflict, has been the Commander-in-Chief of all the 
forces effecting these great victories, Avhether in the field, upon 
the sea, or in the council chamber. 

While the precedents established by the diplomatic customs of 
the United States have been followed, more concise verbiage has 
been used, and the methods of procedure prescribed, are far less 
complex than those provided for in any previous treaty by which 
territory has been acquired, or claims by the United States against 
foreign powers have been settled. 

The declaration in the treaty that the United States are to be 
bound by the obligations imposed by International Law in regard 
to the occupancy of Cuba, is a signal victory for the principles of 
the decision of disputes between nations by recognized rules of 
law; it is practically an admission that the right to settle matters 
by the final arbitrament of war, can only be resorted to after an 
attempt has been made to reach a peaceful settlement according 
to the rules of International Law. 

The treaty is as notably a triumph of diplomacy in regard to 
the provisions that are "conspicuous bv their absence" as it is in 
regard to those which do appear. 

The omission of any reference to any indebtedness of the 
former sovereign of the ceded territory was the result of a long 
diplomatic struggle, in which our Commissioners were completely 
victorious; taking into consideration the fact that title had been 



6 OUR TREATY WITH SPAIN. 

acquired by conquest prior to the cession made by the treaty, as is 
evidenced by the incorporation of the Protocol of August 12th in 
the treaty as a part thereof, and the continuance in force of its 
provisions, no foreign creditors will be able to sustain any claim 
against the United States on the ground that they have directly 
or indirectlv assumed anv financial obligation existing in con- 
nection with any of the ceded territory. 

The renunciation by Spain of her sovereignty over the Island 
of Cuba, without naming any power in whose favor such renun- 
ciation is made, is accompanied by the admission that the United 
States are now in military occupancy thereof, and thereby the 
anarchical condition which might otherw^e have ensued is en- 
tirely prevented, and all possible trouble therefrom averted. 

The treaty briefly, but most effectually, provides for the future 
civil and political status of the inhabitants, byvestingin Congress, 
the right to define the civil and political status of all the natives, 
thus, in a single sentence of less than twenty words, completely 
wiping out all the doleful forbodings which have been made by 
the foes of expansion, on account of the danger involved in mak- 
ing several millions of native, and possibly uncivilized, inhabi- 
tants of the Philippines citizens of the United States. 

This point has been so completely covered by the Commis- 
sioners, in so few words^, that the position of the calamity criers 
must be rather mortifying, when they see the entire pano- 
rama of future mishaps, woes and miseries, which they had so 
confidently and eloquently conjured up, melt away into such thin 
mist that the mere fact of its existence will have been entirely 
forgotten, before the treaty .-hull even have been transmitted for 
latification. 

AVhile considering the greater matters involved in the transfer 
of territory, the Commissioners have not neglected the lesser de- 
tails of pro'^or\;ili(>ii of evidence and muniments of title, and 
of property, thus averting many of the difiiculties which were 
encoimtereil in the establishment of titles in territory previously 
acquired. 

The granting of equal rights to Spanish ships in the ports of 



OUK TKEATY WITH SPAIN. 7 

the ceded territoiy during the brief term of ten years, shows a 
proper regard for the continuance of mercantile connections, the 
sudden shattering of which might cause those financial embar- 
rassments which often follow the breaking off of long-continued 
associations. 

In fine, the treaty will be welcomed by all true-hearted citizens 
as the just, proper and honorable termination of the hostilities 
which were forced upon us, and which we would have avoided 
had we been able, but which all the higher motives and principles 
that should actuate any nation compelled us enter upon. 

The long discussion in regard to the policy of "expansion" ha? 
ended. That is, it has ended so far as any practical bearing upon 
the result is concerned. Doubtless there will be many arguments 
advanced conclusively proving that expansion is not only inad- 
visable, but that it is also unconstitutional, but meanwhile the 
country has expanded, and the real question now before the nation, 
is not whether we shall take the ceded territories under our 
jurisdiction, but, now that we have taken them, how we shall best 
govern them, not only for the sake of ourselves, but of the addi- 
tional one per cent of the inhabitants of the globe for whom we 
have rendered greater service in the past six naonths, than all 
other civilized nations have rendered during the past three cen- 
turies. 

The question of the advisability of the war itself was discussed 
in the same spirit last spring. Thousands hoped and prayed that 
it would be averted even at the cost — not to use any harsher 
term — of national dignity, but the moment that the crisis came 
and war became not only inevitable, but a fact — a condition, so to 
speak, and not a theory — the questions of its advisability, and its 
propriety, were forgotten; all were for the Country, all prayed 
for victory. Should it not be so even now? Should not every one 
urge the promptest ratification of this peace-bringing treaty and 
so help the nation, and those who are charged with the direction 
of its government, not only to accept these added possessions, but 
also to sustain the added responsibilities, and thus to show to the 
world at large — for it is watching us now even as it did when the 



8 OUR TREATY WITH SPAIN. 

Constitution was first adopted — that we have expanded not only 
in territory, but also in dignity and honor, and that our Govern- 
ment is no more of an experiment to-day in the wider sphere over 
which it nows extends, than it was when we first assumed the 
reins of self-control. 

In one of those short and characteristic speeches, delivered by 
the President in his recent visit to the South, he asked: ''T\^ho 
will pull down the flag now that it has been raised?"' and told 
the storv of the color bearer, who had advanced in the thick of 
battle beyond the foremost fighting line, and on being ordered to 
bring the flag back to the line, replied: "I can't; bring the 
line up to the flag." The flag has been advancing beyond the old 
line, but the line has been brought up to it. But does not the 
flag also float above the line, as well as bevond it ? A verv short 
lime ago, it seemed too far beyond us, but we have caught up to it; 
it is true that the higher it waves above us, the harder it may be 
to reach it; but, as "he higher shoots, who aims a star, than he 
who aims a tree," surely the results attained will be 
all the greater if the struggle is the harder. We 
have overcome difiiculties before, but only when we met them — 
not when we avoided them, when we changed our policy — not 
when we continued it. Spain has never changed her policy. 

To-day the pirates of the Barbary Powers would still be levy- 
ing tribute on our merchant marine, as they did when Washing- 
ton himself transmitted to the Senate one of those mortifying 
treaties for confirmation, with a statement of the price involved 
for obtaining it, had we not changed our policy and as- 
serted our ability to bring the line up to the flag, under the lead- 
ership of Decatur, Allen and other prototypes of Farragiit and 
Dewey. To-day the ships of foreign powers would be searching 
our merchantmen and impressing our seamen as they did for 
years, had we not changed our policy of submission and asserted 
our rights upon the sea under the leadership of Madison in the 
Executive Mansion; of Clay in the Senate, who sounded the 
watchword, "Freedom of Trade :in<l Our Sailors' Jxights;" of 
L;iwronce iiiid P(>rrv on tho s<'n. ;iiid of Jackson on tlie land. 



OUE TREATY WITH SPAIN. 9 

To-day slavery would be an institution flourisliins: not onlv in 
those States to which it was once confined, but spreading over all 
the territories to which it was extended by the decision in the 
Dred Scott Case, had we not changed our policy, and had not 
Lincoln signed the Proclamation of Emancipation, notwithstand- 
ing the distinct disavowal, in his inaugural address, of any pur- 
pose, directly or indirectly, of interfering with slavery in the 
States in which it existed, and his then sincere statement that he 
had no lawful right, or inclination, to do so. But will any one 
dare to blame him for that inconsistency. Thank God! the cour- 
age of his inconsistency triumphed over the cowardly consistency 
of those who opposed him ; where would this country be now had 
Lincoln hesitated, if some one had shown him a list of George 
Washington's slaves? Will the bitterest foe of expansion es- 
pouse the cause either of contraction, or of disintegration ? 

The "Destiny of the United States" is not a mere phrase — or a 
mere fancy — it can not be dismissed with a sneer. John Adama 
saw i't when, in 1787, he contemplated the union of the whole of 
North America — a sphere of power and influence which for that 
day, or even for this, is far beyond any that we have assumed, or 
even thought of, as yet. William H. Seward saw it when he 
made his great address at Sitka after the piu-chase of Alaska. Is 
our \dsion any dimmer than their's? 

Surely our great advance has not been all by chance — surely 
thus far the Lord hath led us on, and surely He will not forsake 
us now. 

Many dangers have been encountered, all have been over- 
come; the skies have at times been dark, but the clouds have rolled 
away; responsibilities have been added, but increased s.trengthhas 
been given to bear them; have we not the right — should we not 
have the faitli^ — to judge the future by the past? At this joyful 
Christmas season, when gifts are being exchanged between all 
who love each other, let the gifts of loyalty and allegiance that 
we are receiving from the far off regions of the east, and of the 
west, be reciprocated by gifts, from us to them, of cordial 



10 OUR TREATY WITH SPAIN. 

and aflfectionate welcome, and let us freel}' assume our 
new responsibilities as we have assumed those that came to us in 
the past, remembering that nothing brings its own reward so 
surely, and so completely, as the prompt recognition, and faithful 
performance of duty. 

In the beauty of the lilies Christ was born a>jross the sea, 
With a glory in His bosom that transfigures you and me; 
As He died to make men holy, let us die to make men free, 
While God is marching- on. 

AVe have heard that song before; we have sung the words, as 
we have marched with the tune to victory. There is power still 
in the words ; there is music still in the notes ; the flag is still be- 
fore us, and the flag is still above us. Shall we not still keep 
marching on? 

In the brief time at the annotator's disposal — less than three 
days having elapsed since the publication of the text of treaty — it 
has been impossible to thoroughly collate all the legal and his- 
torical precedents which should be cited in order to make this a 
complete work; the publishers, however, have thought that the 
j)resentation, in a concise form, of the treaty, annotated by refer- 
ences to historical precedents, corresponding clauses in former 
treaties, and decisions of the Supreme Court in regard to the 
rights of this Government under the Constitution, as well as 
under the rules of International Law, would be of interest to the 
public, who are probably more thoroughly and intelligently in- 
terested on this occasion than they have ever been before, and 
therefore this annotation is presented without further apologies 
as to its defects and deficiencies. 

CHARLES HENRY BUTLER. 
1531 I Street, Washington, D. C. 
December 23, 1898. 



OUR TREATY WITH SPAIN. 11 



ARTICLE I. 

Spain renounces all right of sovereignty over Cuba; ivherras, 
said isle, ivhen evacuated by Spain, is to or occupied by the 
United States ; the United States, ivhile the occupation continues^, 
shall take upon themselves and fulfill tJie obligations ivhirh. Inj 
the fact of occupation, international law imposes on them for the 
protection of life and property. 

Cuba was discovered by Columbus during his first voyage in 
1492. In 1511, Diego Velasquez, on behalf of Don Diego Colum- 
bus, took formal possession of the Island ; it is said that the cere- 
mony included the cremating alive of a native chief at the stake, 
and that the victim on being urged to abjure his own gods and 
accept Christianity so that his soul might go to "regions of eter- 
nal bliss," asked if there were any Spaniards in those happy 
abodes, and on receiving an afiirmative reply declined to accept 
the proffered reward for his abjuration, on the ground that he 
preferred to go somewhere else and avoid their society. 

Cuba has an area of about 43,000 square miles, and is about 
the size of the State of Pennsylvania. There are about 30,000,- 
000 acres, of which less than 3,000,000 are now under cultiva- 
tion. 

The population at one time was estimated at nearly 2,000,000. 
About eighteen months ago it was estimated at 1,500,000. At 
the time of the declaration of war it was supposed to be less than 
1,000,000; it is impossible to obtain any accurate estimates in 
this respect. 

In 1538, Havana was burned by a French privateer, and the 
occurrence was repeated in 1554, immediately after which Morro 
Castle was built. In 1762, Lord Albemarle, with a fleet of two 
hundred sail and a land force of over 14,000, attacked Havana, 
and after a seige of two months captured the city, which, together 
with all the surrounding country, remained in the possession of 



12 OUR TREATY WITH SPAIN. 

England for about a year thereafter, when the Treaty of Paris^ 
February 10, 1763, restored the territory to Spain, who ceded 
Florida to England; France ceded Louisiana to Spain by the 
same treaty. Florida was subsequently re-ceded to Spain by En- 
gland. From 1763, Cuba has remained under Spanish rule, 
until by the present Treaty of Paris her sovereignty in the Is- 
land has been terminated forever. (For brief histories of Cuba 
see The Island of Cuba, by Rowan and Ramsey, IST. Y. ; Henry 
Holt, 1897; The Story of Cuba, Her Struggles for Liberty, 
Murat Halstead, Chicago, 1897.) 

Renunciation. — The treaty is silent as to the power in whose 
favor Spain renounces her sovereignty over Cuba. This was a 
wise move on the part of the LTnited States Commissioners. The 
sovereignty over every portion of territory of the world is vested 
in the people living within natural geographical boundaries, ex- 
cept so far as it has become vested in some sovereign power, and 
when that power renounces such sovereignty it vests again in the 
inhabitants thereof; Spain by this renunciation ha\ang abandoned 
her sovereignty, it again returns to the inhabitants of Cuba; as 
there is no organized government there to succeed to that of 
Spain, the sovereignty vests in the people in the same manner as 
her relinquished sovereignty over the Spanish colonies in South 
America vested in the people of each colony respectively, who 
tliereafter organized their own independent governments. 

In the present instance, if it Avere not for the occupancy of 
the United States, this might result in anarchy; it is, however, a 
safe provision, in xiev; of the fact that the United States are in 
complete control, and, under the rules of military occupancy, 
have the right, and are under the duty, of maintaining order. 

At the proper time, and subject to such rules and provisions 
as the occupant shall, as it has a right to do, prescribe, the people 
of Cuba can determine what form of government will be as- 
sumed, and it will also properly be within the power of the mili- 
tary occupant to determine whether the people shall be permitted 
1 o govern themselves accordingly or not. 

The advantage of the complete renunciation of Spanish sov- 



OUE TREATY WITH SPAIN. 13 

I'l-eignty, witlioiit the same being made in favor of any particular 
government, will become very apparent when any attempt shall 
be made by holders of Spanish obligations of any nature, to 
charge them upon the territory of Cuba, or against any power 
governing the same. 

jSTo obligation of any kind can be created against a govern- 
ment which is entirely new, and which could not possibly be 
charged with any indebtedness, on account of its non-existence 
when the indebtedness was incurred, and without any formal as- 
i-umption thereof on its part. 

The Evacuation of Cuba by Spanish forces was provided for in 
the Protocol of August 12 (See Appendix); under which a 
special Commission, consisting of Major-Generals Wade, 
and Butler, and Admiral Sampson, with Mr. Charles 
W. Gould of jSTew York Citv as counsel, has been in 
Cuba since September, 1898, attending to the evacuation by the 
Spanish forces. 

As rapidly as the Spanish forces leave the Island and territory 
is evacuated, the United States forces take possession and the 
military rule extends over the additional territory. 

The obligations which are imposed under International Law 
by the fact of occupation, and which are assumed by the United 
States, grow out of the right of conquest of territory by sovereign 
nations as the result of war; the rules of occupancy have been 
well established both by International Law^ and the rules 
specially adopted by the United States. 

On the capture of Santiago, the President issued a proclama- 
tion relating to the government of the territory conquered and 
occupied (See Appendix hereto), and by a subsequent proclama- 
tions, the same rules have been extended to all the other occupied 
territory, as the same is evacuated by the Spanish troops, or the 
lines of the United States forces are extended. 

Apart from these particular rules. General Order No. 100, A, 
G. O., 1863, prepared during the Civil War by General Francis 
Lieber, and revised by a Board of Officers of the United States 



14 OUR TREATY WITH SPAIN, 

Army, provides generally for rules in regard to occupancy of 
conquered territory by the military forces of the United States. 

The general rules of occupancy under International Law are 
well expressed by Major George B. Davis, formerly Judge 
Advocate U. S. A., in his "Outlines of International Law," (N. 
Y., 1887. See Sees. 37-38); in the same volume will be found as 
appendices General Order No. 100, as well as the proposed 
rules for the law of war on laud (largely devoted to rules as to oc- 
cupied territory) which were recommended for adoption by the 
Institute of International Law at the session in Oxford, Septem- 
ber, 1880, and which were largely based on our own regulations. 

Snow's "Cases on International Law^" (Boston, 1893, pp. 
36-1-385) contains reference to a number of cases on the subject 
of occupation, and the rights and duties of the occupant, and of 
the inhabit-ants; the same volume also contains as an appendix at 
page 532, the Instructions for United States Armies, and the 
proposed Code of the Institute of International Law; also refer- 
ences to the subject of Military Occupation and the general char- 
acter of the right and jurisdiction of the conquerer in the follow- 
ing works of International Law: Hall (English), 462-497, in 
which the whole subject is treated in its various aspects; Halleck 
(English Edition), Vol. 2, pp. 444-479; Bluntschli, Articles 539- 
541; Calvo, Sec. 2166-2198; Woolsey, 252; Creasy, 502-516; 
Walker, 344-346; Phillimore, Vol. 3, 832-840. 

Captain Edwin E. Glenn, Judge Advocate U. S. A., in his 
"Hand-Book of International Law'' (St. Paul, Minn., 1895), de- 
votes Chap. XV, pp. 216-225, to the subject of occupancy. He 
summarizes some of the rules as follows: 

"When a hostile army possesses a territory of the enemy, 
to the extent that it exercises actual autliurity over it, either 
through force or the acquiescence of the inhabitants, this 
territory is said to be occupied. The extent of occupied 
territory is determined by the limits over which this author- 
ity is established and can be exercised. •'•■ "•'■ ^^ The occu- 
pant has the right tc^ exi-rcise such control over the occupied 
territory and its inhabitants as may be required for his 
safety and the success of his operations. * * * Construct- 



OUK TREATY WITH SPAIN. 15 

ive occupation implies a liberal interpretation of the term 
territory, and that occupation is complete within the district 
forming an administrative unit, so soon as military resist- 
ance on the part of the organized forces of the state ceases, 
and notice is posted or given in some other manner at a 
given place. * * '^ All laws implying or importing obe- 
♦ dience to the original sovereign are suspended. Certain acts 
not ordinarily punishable are rendered so. Summary punish- 
ment is authorized for certain acts, and the death penalty is 
awarded in certain cases^ where the oifense is such as to au- 
thorize such punishment by the laws and usages of war. 

* * * Occupation authorizes taking and exercising com- 
plete control of the administration, but the practice is to 
permit such native officials as may be deemed desirable to 
perform their duties under supervision of the military au- 
thorities, or officers appointed by the occupant. ^ "' * 
The civil officers thus retained can be required to take an 
oath of obedience of fidelity to the new ruler during the oc- 
cupation, and for refusing to do so may be expelled. 

* * ■" The invader should at as early a date as practica- 
ble inform the inhabitants of the extent of the occupied dis- 
trict and the extent of the forces he exercises, should take 
measures to secure public order and tranquility, should nul- 
lify or alter existing laws as little as practicable; should not 
commit wanton damage, and should protect public build- 
ings, works of art, etc." 

In August, 1870, the Crown Prince of Prussia, upon entering 
I ranee, included the following in his proclamation: 

"Military jurisdiction is established by this decree. It 
will be applicable to the entire extent of territory occupied 
by German troops, to every action tending to endanger the 
security of those troops, to causing them injury or lending 
assistance to the enemy. Military jurisdiction will be con- 
sidered as in force and proclaimed through all the extent of 
the canton as soon as it is posted in any locality forming a 
part of it." 

Area of Territory Occupied. — In the triangular contention 
for the ownership and control of Cuba during the past year, three 
governmental parties have been interested : Spain, which, acord- 
ing to every rule of International Law, was the only 



16 OUR TREATY WITH SPAIN. 

sovereign nation exercising any control thereover, until 
the Declaration of War, the United States, which have 
acted under the rules of International Law, as inter- 
venors, and the so-called Cuban Republic, which has been con- 
ducting an insurrection, but which has never been recognized or 
accorded belligerent rights by either the United States or the 
Spanish Government, or in fact by any government wliich, at the 
present time, could clothe that organization with the character of 
a government, possessing any sovereignty, or right of control over 
any part of the Island of Cuba. 

The United States, having exercised the lawful right of inter- 
vention, acquired a military occupancy, as against the only 
recognized sovereign power, first under the Protocol of August 
12th (See Appendix) temporarily, and now, assuming its ratifica- 
tion, permanently under the Treaty of Paris. This occupancy, 
under all of the rules of International Law, as ex- 
pressed by all the leading writei-s, including those above cited, also 
gives them such exclusive military jurisdiction over all the 
inhabitants, that any uprising on their part, whether under the 
leadership of the so-called Cuban Republic, or any organization 
claiming governmental powers, would be an insurrection as 
against the United States, and would entitle them to use, under 
the direction of the President, as Commander-in-Chief, all 
military and naval power which could be exercised in time of 
war; any such uprising should not under the rules of Interna- 
tional Law be recognized by other foreign powers, as war, any 
more than the United States had the right to recognize belliger- 
ency on the part of the Cuban insurgents. 

These same remarks will apply, so far as any \iprising is con- 
cerned, to the Fillipinos in the Philippine Islands, so long as that 
territory continues under military government, i. e., until Con- 
gress shall legislate in regard thereto. After that, any uprising 
would be exactly the same as an uprising in Alaska or any other 
territory of the United States. 

As the sovereignty of Spain extended over the entire Island of 
( uha and all of the islands adjacent thereto, so the occupnncy of 



OUR TKEATY WITH SPAIIS. 17 

the United States, having been recognized by the former sovereign, 
extends co-terminously witli the extent of Spain's former sover- 
eignty to tlio fullest extent, and the entire Island of Cuba, the 
Isle (if Pines, and nil of the various "Gardens of the King," and 
Archipelagos lying adjacent, to what might be called in 
this respect, the mainland, are equally brought under the juris- 
diction of the military power of the United States, to bo exercised 
by, or through, the President as Commander-in-Chief. 

Title to Cuba Not Acquired. — Under the rules of International 
Law no permanent title is acquired by mihtary occupation. 

While tliis is generally true, there is still a prescriptive title 
which, after a long period of non-resistance to military occupancy 
might ripen into actual sovereignty, but it is always subject to an 
act of reclamation by the original sovereign, and, therefore, it is 
as difficult a title to sustain under International Law, until ratified 
by a treaty, as is a title by adverse possession between individuals, 
until assured by a quit claim from the original owner. 

Constitutional questions in this respect have arisen heretofore 
in regard to territory occupied by the United States. 

The Supreme Court has decided that actual ownership of ter- 
ritory and extension of the boundaries of the United States can 
not be effected by the President alone in his military capacity as 
Commander-in-Chief, but only by legislative action; but it has, 
also held that territory occupied by conquest is, as to all the 
world, part of the United States, although it exists under a pe- 
culiar status as to the United States themselves, and remains to 
a certain extent foreign territory. 

In Fleming vs. Page (9 Howard, U. S. Keports, p. 603), Chief 

Justice Taney, in defining the relations of Tampico, a Mexican 

port captui-ed by United States troops, and occupied during the 

war, but afterwards surrendered to Mexico by the treaty of 

peace, in 1848, says: 

''By the laws and usages of nations conquest is a valid 
title, while the victor maintains the exclusive possession 
of the conquered country. The citizens of no other nation, 
therefore, had a right to enter it without the permission of 



18 OIJK lllEATY WITH SPAIN. 

American authorities, nor to hold intercourse with its 
inhabitants, nor to trade with them. As regarded aU 
other nations, it was a part of the United States, and be- 
longed to them as exclusively as the territory included in 
our established boundaries. * '^ * While the terri- 
tory was occupied by our troops they were in an enemy's 
country, and not in their own: the inhabitants were still for- 
eigners and enemies, and owed to the United States nothing 
more than the submission and obedience — sometimes called 
temporary allegiance — which is due from a conquered 
enemy, when he surrendei-s to a force which he is unable to 
resist. But the boundaries of the United States, as they 
existed when war was declared, were not extended by the 
conquest: nor could they be regulated by the varying inci- 
dents of war and be enlarged or diminished as the annies of 
either side advanced or retreated They remained un- 
changed. 

The President, as Commander-in-Chief of the Army, has full 
power over the occupied territory, and this power continues as 
long as the military occupancy continues, irrespective of whether 
any treaty is signed or not. 

"The President shall be Commander-in-Chief of the Armv and 
Xavy of the United States and of the militia of the several 
States when called into actual service of the United States." 
(Constitution of the U. S., Art. 2, Sec. 2.) The decisions of the 
Supreme Court relating to this subject have been collated in 
Black's "Hand Book of Constitutional Law." (St. Paul, Minn., 

1895), see pp. 95-97 and cases cited, as follows: U. S. vs. Elias- 
.<on, 16 Peters, 291; U. S. vs. Freeman, 3 Howard, 556; The 

Prize Cases, 2 Black, 635; Fleming vs. Page, 9 Howard, 603; 

Toiten vs. U. S., 105; The Grape Shot, 9 AVall, 192; Allen vs. 

Colby, 47 N. H., 514; on page 97 he says: 

"In virtue of his rank as the head of the forces, he has cer- 
tain powers and duties with which Congress can not inter- 
fere. Tor instances, he may regulate the movements of 
the Army and the stationing of them at various posts. So 
also he may direct the movements of the vessels of the 
navy, sending them wherever in his judgment it is expe- 
tlient. Neither here, nor in n state of war. is there any nee- 



OUR TREATY WITH SI'AFX. 19 

es?ary conflict. I'he President has no power to declare 
war. That belongs exclusively to Congress. But when 
war has been declared, or when it is recognized as actually 
existing, then his functions as Coniinandor-in-Chief become 
of the highest importance, and his operations in. that char- 
acter are entirely beyond the control of the legislature. It 
is true that Congress shall alone raise and support the armv 
and provide and maintain the navy, and it is true that the 
power of furnishing or withholding the necessary means and 
supplies may give it an ijidirect influence on the conduct of 
the war. But the supreme command belongs to the Presi- 
dent alone. In theory, he plans all campaigns, establishes 
the blockades and sieges, directs all marches, fights all bat- 
l^^- ties." 

It will be remembered that the plenary power with which the 
President is clothed as Commander-in-Chief proceeds from a 
clause in the Constitution, which was framed by a convention 
over which George AVashington himself presided, and he well 
knew how necessary it Avas that the Commander-in-Chief of the 
Army should not be hampered by any restrictions whatsoever. 

TJntil Congress ads, the mere execution and ratification of 
peace does not in any ivay interrupt the military government. 
That continues until Congress assumes jurisdiction and control 
by extending the laws of the United States over conquered or oc- 
cupied territory'. 

This point was settled by the Supreme Court in the case of 
Cross vs. Harrison 16 Howard, 164), and on this question the 
Court says: 

"The formation of the civil government in California,, 
when it was done, was the lawful exercise of a belligerent 
right over a conquered territory. It was the existing gov- 
ernment when the territory was ceded to the United States, 
as a conquest, and did not cease as a matter of course, or as a 
consequence of the restoration of peace; it was rightfully 
continued after peace was made with ALexico until Congress 
legislated otherwise, under its Constitutional power to dis- 
pose of and make all needful rules and regulations respect- 
ins the territory or other property belonging to the United 
States. 



-^0 OUR TREATY WITH SPAIN. 

"The tonnage duties and duties upon foreign goods im- 
ported into San Francisco were legally demanded and law- 
fully collected by the civil governor, whilst war continued, 
and afterwards, from the ratification of the treaty of peace 
until the revenue system of the United States was put into 
practical operation in California under the acts of Congress 
passed for that purposes." 

Ohligations Imposed by International Law. — International 
law not only confers the right of military government, but also 
imposes the obligation of maintaining order upon the occupant 
of territory conquered or ceded as a result of war. 

In this respect Hall says (Sec. 160): 

"Though the fact of occupation imposes no duties upon 
the inhabitants of the occupied territory, the invader him- 
self is not left equally free As it is a consequence of his 
own acts that the regular government of the country is sus- 
pended, he is bound to take whatever means are required for 
the security of public order; and as his presence, so long as it 
is based upon occupation, is confessedly temporally, and his 
rights of control spring only from the necessity of the case, 
he is also bound, over and above the limitations before "Stated, 
to alter or override the existing laws as little as possible, 
whether he is acting in his own or the general interest. As 
moreover his rights belong to him only that he may 
bring the war to a successful issue, it is his duty not to do 
acts wdiich injure individuals, without facilitating his opera- 
tions, or putting a stress upon his antagonists. Thus, 
though he may make use of or destroy both pub- 
lic and private property for any object connected with the 
war, he must not commit wanton damage, and he is even 
bound to protect public buildings, works of art, libraries 
and museums." 

In regard to this, see also Art. 30 of General Order No. 100, 
1.S63; Project of the Declaration of Brussels, Art. 5; Man- 
ual of the Institute of International Law, Art. 42-49; Bluntschli, 
Sec. f547. 

Beyond these obligations to maintain law and order, as anyciv- 
ilizod government ought to do, there does not seem to be any ob- 
ligatinii imposed l)y Tii1cni.iti(in:il Law upon the occupant of ter- 
ritory. 



OUR TREATY WITH SPAIN. 21 

AVith the obligations thus imposed, the correlative grant of 
power is implied, and under all the rules, the invader and occu- 
pain has the right to impose contributions and requisitions if nec- 
essary, or to raise funds by the preferable course, which has been 
pursued in the present instance (see Appendix), of levying duties 
upon imports and exports, the proceeds of which belong to the 
invader for the purpose of maintaining his army, and law and or- 
der thereby. This rule has been settled by the Supreme Court in 
the cases of Fleming vs. Page, 9 Howard, 603, aiul Cross ws,. 
Harrison, IG Howard, 164, above referred to. 

ARTICLE II. 

Spain cedes to tlie United States the Ix/aml of J'orfu Rieo and 
the other islands now under her sovereignfij m fhr ]\'<s/ Indies, and 
the isle of Guam, in the archipelago of the Jlariauds or Ludrones. 

Porto Rico, or as it is also spelt, Puerto Rico, is an island in the 
AVest Indies, which ranks in size as the fourth of the Greater An- 
tilles, but which takes the first place for density of population and 
general prosperity, as stated by Reclus in his Univei-sal Geogra- 
phy (English Edition, Volume lY, page 423). The population in 
1765 was somewhat less than 45,000. In 1891, it exceeded 820,- 

000. 

It is 108 miles long, 37 broad, has an area of 3,530 square 
miles (about three times the size of Long Island). The island 
was discovered by Columbus in 1493, and was conquered by the 
Spaniards under Ponce de Leon 1509-18. During this period 
nearly the whole native population was exterminated. It has 
since been held by Spain. Slavery was abolished in 1873. (John- 
son's Encyclopedia.) 

The Isle of Guam, in the archipelago of the Marianas or La- 
drones, is the largest island in a group of 17 islands, which 
stretches north and south in the Pacific Ocean for a total distance 
of 600 miles. The land area of the entire group is somewhat over 
500 square miles. There is an annual postal service with Manila. 
Population in 1875 was estimated at 9,000 for the entire archi- 
pelago, of which about 7,500 were supposed to be in Guam. 



i',' (n']l TRKAI'Y WJTII SPAIN. 

These islands were the first Pacific Ocean group which Magel- 
lan met in 1521 on his vovage around the world. Ton davs af- 
tcr he sighted them he reached the Philippines and died. 

They were first called Ladrones, which, being translated, 
means "robbers." They were subsequently named in 1564 Mari- 
ana, after the Austrian wife of Phili]^ IT. They arc about 1,200 
miles this side of the Philippines. They have been held by Spain 
ever since their discovery by Magellan, and their subsequent oc- 
cupation, in 1564. at the same time when the Philippine? were 
occupied. 

The evacuation of Porto Kicu was provided for by the protocol 
of xVugust 12th (see appendix); a special Commission, consisting 
of Major-General John R. Brooke, Rear Admiral AV. S. Schley 
and Brigadier-General W. W. Gordon, conducted the proceed- 
ings; the evacuation was completed by the departure of the Span- 
ish army, and the transfer of possessions of the United States was 
evidenced by the raising of the stars and stripes October ISth, 
since which time the island has been under the complete military 
control of this Government. 

Rigid of One Sovereign Power to Cede Territory to Another 
Sovereign Foiver. — This right is discussed in llalfs Interna- 
tional Law, Section H, pages 47-50. lie defines it as follows 
(p. 47): 

"The rights of a state with respect to property consist of 
the right to acquire territory, in being entitled to peaceable 
possession and enjoyment of that which it has duly obtained, 
and in the faculty of using its property as it chooses and 
alienating it ar will. ■• " ■• The principle that the wishes 
of the population are to be consulted when the territory 
wliirh they inhabit is ceded, has not yet been adopted into 
International Law, and can not be adopted into it until title 
li\- cdiHiuot lias ilisappenrcd." 

lie cites the cessions of Savoy to Fraiu-c. the Ionian Islands 

to Greece, Yenetia to Italy, and otluM- Kuropean cessions, and 

fnrtlicr says (p. 40): 

''States being the solo international units, the inhahiiants 
of :i ^('(1(^(1 t(>rritorv. whctlicr :ii-tini: a- an ovaanizcd body or 



OUR TEEATY WITH SPAIN. 23 

as an unorganized mass of individuals, have no more power 
to confirm or reject the action of their state than is possessed 
by a single individual. An act, on the other hand, done by 
the state as a Avholo is, by the very conception of a state, 
binding upon all the membei*s of it." 
The following is a citation from an eminent authority : 

"I need not dwell upon the right to transfer territory, or 
in other words, to put an end to all dominion over them, for 
acquisition on the part of one nation implies transfer, <n' end 
of dominion, by another." — John ISTorton Pomeroy's lec- 
tures on International Law, Edited by Theo. S. Woolsey, 
Boston, 1886, p. 198. 

In Halleck's International Law, San Francisco Edition, 1861, 
at page 125, the rule is stated: 

"A state being regarded in our law as a body politic or 
distinct moral being, naturally sovereign and independent, 
it is considered capable of the same rights, duties and obli- 
gations with respect to other states as individuals with re- 
spect to other individuals. Among the most important of 
these natural rights, is that of acquiring, possessing, and en- 
joying property. * * * ^ sovereign has the same ab- 
solute right to dispose of its territorial, or rather public, 
property, as it has to acquire such property." 
Halleck thinks that in some cases the consent of the governed 
is necessary before the transfer of allegiance can take place, but 
he shows, however, that there are numerous examples of treaties 
of sale, and cites a number of them on pages 128 and 129, and 
states that in some instance territories have even been mortgaged, 
and bought in thereafter, and that furthermore, it has been the 
custom "to dispose of sovereignties and dominions by deeds of 
gift and by bequests." 

The Right of the United States to Acquire Territory has been 
the subject of a vast amount of debate in Congress and in the pa- 
pers. There are some who deny the right, but it is difficult to 
conceive on what authority. The Supreme Court has decided 
that the United States is a nation, and as such has all the rights 
of sovereignty that every other sovereign nation has, and can 
exercise them just as broadly, including the right of acquisition 
of territory. 



24 OUE TEP:ATV \VITH SPAIN. 

Senator 0. H. Piatt, of Connecticut, delivered an able address 
on this subject in the Senate, December 19th, 1898, and referred 
lomost of theauthorities. (Cong. Record, p. 321, et seq.) In this 
respect he quoted from Judge Gray's opinion in one of the 
Chinese Exclusion Cases, 149 U. S., 711, as follows: 

"The Uixited States are a sovereign and independent na- 
tion, and are vested bv the Constitution with the entire con- 
ti'ol of international relations and with all the powei-s of 
government necessary to maintain that control and to make 
it effective. The only government of this country, which 
other nations recognize or treat with, is the Government of 
the Union, and the only American flag that is known 
throughout the world is the flag of the United States.'' 

'J'he Senator then continued: 

"The doctrine was denied by Hayne. It was tri- 
umphantly asserted by Webster in his great de- 
bate, in which he first made it plain to the American 
people tliat the United States lacked no element of nation- 
ality. It was denied in the nullification acts. It was tri- 
umphantly asserted by Jackson, when he threatened to hang 
, lilt originator of thcacts.andsocowed theincipientrebellion. 

It was denied in the ordinances of secession ; but it was again 
gloriouslv asserted bv Abraham Lincoln, when he Issued his 
call for 75,000 volunteer troops to preserve the Union, and 
the people gloriously responded. It has been written in the 
books. It has been written in the published utterances of 
statesmen from the time when the people of the States made 
our Constitution down to the present time. 

"But, Mr. President, it hasbeen otherwise written. It hai 
b(^eii written in the blood which deluged the battlefields of 
the Civil War for four lone; vears. It has been written with 
the sword upon the heart of every true American citizen. 
It has been written on the mourning weeds of the widows 
who lost husbands, of the mothers who lost children, of the 
children who lost fathers. It is too late to deny it, Mr. Pres- 
ident; it is time to believe in it with a living, saving faith, 
from which all doubt is eradicated." 

As t"© right of acquisition and the right to govern territory 
when acquired, see also: Pomeroy's Constitution, 494-498, Jones 
vs. U. S., (the Xavassa Tslaiuls case) 137, U. S., pp. 20^212; 



OUR TREATS' WTTIT SPAIN. JS 

Justice ]\Iiller's Lectures on the Constitution, 35, 36, 55, 57; 

Justice Curtis' Opinion (Dred Scott case), 19 Howard. 612-614. 
These cases and opinions are all based upon the broad declara- 

lion made by the Chief Justice Marshall, in 1824, in 

American I)is. Co. vs. Canter; 1 Peters, 511, p. 542: "The Con- 
stitution confers absolutely on the Government of the 
Union the power to make war and to make treaties; conse- 
quently that government possesses the power of acquiring 
territorv either by conquest or by treaty." 

Cessions of Territory Made to the United States. — This is the 
second cession of territory made by Spain to the United States, 
find, at least the eleventh acquisition of territory, by the United 
States, increasing its original area of less than a million square 
miles to its present magnificent domain three times as large in 
area and over fifteen times as great in population : the first 
cession made by Spain was in 1819 under the Adams- 
de Onis Treaty, by which Spain ceded Florida to the 
United States, in consideration of $5,000,000, which was the li- 
qiiidated amount of the claims owed by Spain to citizens of the 
United States for depredations upon our commerce and in terri- 
tory adjoining Florida. 

The United States has Acquired Territory as Follows: By 
the Treaty of Peace with Great Britain after the Revolutionary 
War, v/hen the original boundaries of the United States were 
fixed, and Great Britain renounced all jurisdiction over the ter- 
ritory therein, which included not only the thirteen original 
States themselves, but also what was afterwards known as the 
ISTorthwest Territory; the original territory extended from 
what is now Canada on the north — the boundary line between 
which and the United States has been fixed by several subsequent 
treaties and arbitrations — to the northerly line of Florida on the 
south; from the Atlantic on the east, to the Mississippi on the 
^^'est, containing about eight hundred and twenty-five thousand 
square miles. (U. S. Treaty, Vol., p. 375.) 

The acquisition of territory since that time have been : 

(1.) Louisiana, consisting, including Oregon, the discovery 



26 OUK IKEATY WITH SPAIN. 

nnd occupation of which grew out of this acquisition, of over a 
million square miles, ceded by France to the United States under 
treaty of April 30, 1803, ratified October 21, 1803, by wliich 
France, under Napoleon Bonaparte as First Consul, through 
J-Jarbc Marbois, ceded the territory for 60,000,000 francs, and 
the relinquishment of claims amounting to 20,000,000 francs, 
(U. S. Treaty, Volume 331-342). Well did Mr. Livingston ex- 
claim to Mr. Monroe, as they arose from signing the treaty : "TTo 
liave lived long, but this is the noblest work of our lives." 

(2.) Florida, consisting of about sixty thousand square miles, 
under the treaty with Spain in 1819, above referred to (U. S. 
Treaty, Volume, p. 1016). 

(3.) Oregon and adjoining territory was acquired by the 
United States under the general rules of discovery and 
occupancy, based upon the discovery of the mouth of 
the Columbia River by Captain Gray, master of the 
good ship Columbia, entering from the Pacific in 1797; by 
Lewis and Clark as, explorers in an expedition fitted by the 
United States proceeding from the east about 1804; and by 
the erection of the furring post by John Jacob Astor at Astoria 
iulsll. The title to Oregon was subsequently confirmed by 
treaty with Spain in 1819, so far as the northerly line of the 
Spanish possessions was concerned, not however in the nature of 
cession, but only of quit claim. (U. S. Treaty, Volume, p. 1016. ) 
The area of territory north of California and east of the Eockies 
is about three hundred and fifty thousand square miles. 

(4.) Texas, with an area of over a quarter of a million square 
miles, in 1845, by joint resolution, adopted by both Houses of 
Congress, after a proposed treaty had failed, was admitted as <; 
State, the legislature of the Republic of Texas having accepted 
ihc terms and conditions contained in a joint resolution adopted 
by Congress. (For resolution nnd proclnmntion see U. S. 
Statutes at Large for 1845.) 

(5.) California, Colorado, Nevada, Utah,N ew Mcxko,i\\A\)iini 
id Arizona and other States, over five hundred thousand square 
miles in all. were acquired under the Treaty of Guadaloupe- 



OUK TREATY WITH SPAIN. 27 

Hidalgo with Mexico in 1848, at the termination of the Mexican 
War, and in consideration of $15,000,000 paid to Mexico under 
somewhat similar circumstances as the $20,000,000 is to be paid 
to Spain under the present treaty. (U. S. Treaty. Volume, p. 
6.87.) 

(6.) Horse Shoe Reef in Lake Erie, was ceded to the United 
States by Great Britain in 1850, without any actual considera- 
tion, but under agreement that the United States would erect and 
maintain a light-house thereon. (U. S. Treaty, Volume, p. 444.) 

(7.) The Navassa Islands, near Hayti, and the other Guano 
Islands in the Pacific Ocean, have been taken and occupied by 
the United State? by discovery in pursuance of statutes of the 
United States made in regard thereto (U. S. Kevised Statutes, 
Sees. 5770-5778); The Midway Islands, situated in the Pacific 
Ocean, about half way between Hawaii and Japan, were discov- 
ered by citizens, and afterwards formally occupied in 1867 bythe 
naval forces of the United States under the direction of Secre- 
tary Gideon Welles. (See Senator Piatt's Speech, Senate, De- 
cember 19, 1898, Congress. Rec, p. 325.) 

(8.) Part of Arizona and New Mexico, consisting of nearly 
fifty thousand square miles, were acquired under treaty nego- 
tiated by James Gadsden in 1853, and for which the sum of $10,- 
000,000 was paid to Mexico. (U. S. Treaty Volume, p. 694.) 

(9.) Alaska, in 1867, became United States territory by a 
treaty negotiated between W'illiam H. Seward, as Secretary of 
State, and Edward Stoekel, Russian Ambassador to the United 
States, and which conveyed to this Government all of the Rus- 
sian Possessions in America, consisting of over half a million 
square miles, and to which the name of Alaska has since been ap- 
plied, for $7,200,000. (U. S. Treaty, Volume, p. 939.) 

(10.) Hawaii was annexed by a joint resolution adopted by 
the Congress of the United States, and approved July 7, 1898, 
the terms of which were accepted by the legislative body of Ha- 
waii shortly thereafter, and by which joint action, all of the is- 
lands forming the sovereignty of Hawaii, and which were form- 
erly known as the Sandwich Islands, became a part of the terri- 



2S OUR TREATY WITH SPAIN. 

tory, but not as a State, of the United States, and subject to the 
term? of the joint resolution. (Public Resolution, H. R. No. 
:>1, July 7, 1S98.) 

(See the last map of the United States, published by the Gov- 
ernment, for most of these additions of territory, showing their 
area and geogi'aphieal locations.) 

AlVriCLE III. 
Spain cedes to the United Stairs the archipelago tnoun «.s- the 
Philippine Islands, which comprise the iskuuh situated betiveoi the 
following lines: A line which runs ivest to east near the tuentidli 
parallel of north latitude, across the centre of tlte navigahh canal 
of Bachi,Jrom the llStli to the 127th degrees of longitude east of 
Greenwich ; from here to the icidtlt of the 127th degree of longitude 
east to parallel 4- degrees J^o seconds of nortJi latitude ; from here 
following the parallel of north latitude ^ degrees ^o seconds to its 
intersection with the nuridian of longitude, 119 degrees So seconds 
east from Gh'eenwich ; from here following the meridian of 119 
degrets 35 seconds east to tlie parallel if latitude 7 degrees 40 sec- 
onds north ; from here following the parallel nf 7 degrees 40 
seconds north to its intersection loith 116 degrees longitude east ; from 
here along a straight line to tlie intersection of the 10th parallel 
of latitude north witli the llStJt meridian east, and fnnu here fol- 
lowing the llSth niei'idian to the point whence began this demar- 
kation. The United States shall j>ay to Spain the sum of §20,000, - 
000 ii'itliin three montJis afl<r the interchange of the ratification of 
iJic present treatg. 

The Philippine Islands. — Most of the following data is taken 
from a book entitled, ''Military Notes on the Philippines," pub- 
lished in September, 1898, as Document No. 81, of the Military 
Information Division, by the Advocate General's Office, War 
Department. 

The islands were discovered by Magellan in 1521; in 1564 the 

archipelago received it«i present name, in honor of King Philip 

1 1. The group is composed of about 2,000 islands, but many of 



OUE TEEATY WITH SPAIN. 29 

them are very small, and the exact number is unknown. Spain 
did not acquire actual possession of the islands, although several 
expeditions were made, until 1564; in 1581 the city of Manila 
was founded. The Portuguese, Dutch and Chinese have, during 
the past three centuries, all made efforts to displace the Spaniards 
and occupy these islands, but they have all failed to do so. In 
1762, the same year in which Havana was taken by Lord Al- 
bemarle, Manila was also taken by the English and held for a ran- 
som of a million pounds sterling, which appears, however, to 
have been remitted, and the islands were subsequently returned 
to Spain. 

The area covered by the archipelago is definitely described in . 
the treaty, so far as latitude and longitude is concerned, but it is 
somewhat differently described in the Military jSTotes. The 
treaty description, however, will control, to the extent of Spain's 
sovereignty thereover. 

According to the map in the Military Xotes^ the archipelago 
extends about 1,000 miles north and south, and 600 miles east 
and west. 

The largest island is Luzon, upon which the city of Manila is 
located, and which has an area of 41,000 square miles (about 
2,000 square miles less than Cuba, and about equal in area to the 
State of Virginia.) 

Mindaneo, next in size, covers about 37,500 square miles. 
The five next in size have an area of over 10,000 square miles 
each. The total estimated area is somewhat over 114,000 square 
miles, about equal to the area of Arizona. 

On page 20 it is stated that the Spanish statistics are notor- 
iously unrelijtble, and no accurate census has ever been taken, 
but that the population is estimated at about 8,000,000, of which 
the bulk is of Malay origin. Probably there are not more than 
15,000 or 20,000 people of pure Spanish blood on the island, the 
majority of these being at Manila. 

It has also been stated that there are over 1,000,000 natives, 
who have Chinese blood in them, and over 100.000 Chinese 
in Manila, which has a total population of 400,000; probably 



30 OIU TJIKATY WITlf SPAIX. 

oue-half of the entire iiopulation of the arohipt'hia<y \i\v .m tIh- 
Island of Luzon. 

On page 25, it is stated that the total imports in 1896 were 
$10,631,250, and the exports were $20,175,000, and the public 
revenue was about $12,000,000 of which the larger part is raised 
from direct taxation, customs, monopolies and lotteries. 

■$20,000,000; as to the amount to be paid bv the United 
Stntes, see notes lunlcr Ai't. ^'[T. )i<i~t. 

ARTICLE IV. 

The United States shall, during the term of ten years, courtting 

front the interchange oj the ratitications of the ireatg, adnnt 1o the 

ports of the Philippine Islands Spanish ships and merchandise 

undrr the same conditions as the sJiips and nterchan<h>ie oj the 

United States. 

Privileges of Spanish Vessels in Ports of Ceded Territory. — 
This is not an unusual clause in cession treaties. The business in- 
terests of the inhabitants, who have, of course, had connections 
extending over long periods with people in their home country, 
demand that those connections should not be too speedily termi- 
nated, and certainly such a clause not only benefits the citizens 
(»f the ceding Government, but. also inures to the benefit 
of the new owner, by preventing those mercantile collapses, 
which are so apt to follow interruption of long-established com 
mercial associations. 

By the Louisiana treaty with Franei- {V . S. Treaty. \'.>lunu', 
page 333) special privileges were extended to the vessels of 
France and Spain, or any of their colonies, putting them upon 
an equal footing with vessels of the United States for the term of 
tweh'e years, commencing three months after the exchange of 
ratifications, the treaty also expressly providing that such privi- 
leges should not be given to any other nation. 

In the treaty with Spain of 1819 (U.S. Treaty, Volume, p. 1021) 
(he United States agreed "that Spanish vessels coming laden only 
with provisions of Spanish growth or manufacture directly 
from the ports of Spain, or of her colonics, shall be admitted 
for the term of twelve years to the ports of Pensact^la and 
St. Augustine, without paying other or higherdutiesontheir 



OUR TREATY WITH SPAIN. 31 

cargoes, or of tonnage, than will be paid by the vessels of the 
United States. During the same term no other nation shall 
enjoy the same privileges within the ceded territories. The 
twelve years shall commence three months after the ex- 
change of the ratification of this treaty." 

ill the treaty with Eussia of 1^24 (U. S. Treaty, Volume 
page 932) which fixed the southern boundary of what afterwards 
became Alaska, it was "understood that during a term of ten 
years, counting from the signature of the convention, the 
ships of both powers, or which belong to their citizens or 
subjects, respectively, may reciprocally frequent without 
any hindrance whatever, the interior seas, gulfs, harbors and 
creeks upon the coast mentioned in the preceding article, 
for the purpose of fishing and trading with the natives of 
the land." 

ARTICLE V. 

The United States, on the dgning of the prese^it treaty, shall 
transport to Spain, at their cost the Sjmnisli soldiers whom the 
American forces made prisoners of war tvhen Manila was captured. 
The ((rnii< of these soldiers shaU he returned to tliem. Spain, on 
fJie iuteirJian(/e of the ratification of the present treaty, sJiall pro- 
ceed to evacuate the Philijjpine Islands, as also Guam, em condi- 
tionn similar to those agreed to hytlie commissions named to concert 
fhr evacuation of Porto Rico and the other islands in the Western 
Antilhs, according to tlic protocol of August 12, 1898. which shall 
contiiiiir in force until itx terms Jiave beeri completely :jmplied with. 
Tlw t' nil tvifhin ivhicJi the evacuation of the Philippine Island-^ 
and Gnnm ^hnll he completed shall he fixed by both governrnevfs. 
Spain shall rrfnin tlie flags and f<tands of colors of tlie ivars]iip>< not 
cfiptnred, small arni.s, cannons of all calibers, with their carriages 
(I lid accessories., poivders, munitions, cattle, material and effects of 
all J:/ lids belonging to the armies of the sea and land of Spain in 
tlir Philippines and Guam. Tlie pieces of Ik (ivy caliber luliich. 
arc not field artillery mounted in fortifications and on the coasts, 
xholl remain in their places for a period of six months from the 
intcrcltange of the ratifications of the present treaty, and the United 
Sfiit(s may, during fjiof period, buy from S2)ain said material, if 
bnfli governments arrive at a satisfactory agreement thereon. 



32 OUR TREATY WITH SPAIN. 

Evacuation of the Philippiiies. — This article provides that the 
details of the evacuation of the Philippines shall be conducted on 
conditions similar to those already provided for the evacuation of 
Cuba, and Porto Rico, under the terms of the Protocol of Au^u>i 
12, 1898. 

Any question that possibly the Protocol might be construed as a 
war measure, and llie temporary or preliminary relations thereby 
created, terminated with the ratification of the treaty of peace, is 
obviated by continuing it in force until all of its terms shall have 
been finally complied with, even though the treaty shall mean- 
while be ratified. 

The Commission, under which Porto Rico was to be evacuated, 
has performed its duties and is now functus officio, but the Com- 
mission superintending the evacuation of Cuba is still engaged in 
j.-erforming the duties devolving upon its members, and they 
may not be completed until after the ratification of the treaty. 

The other provisions of this article relate to the special privi 
leges granted to Spain of retaining the uncaptured flags and 
colors, together with some of their military and naval supplies. 

A very sensible provision, however, is made with regard to the 
heavy armament, as during the next six months it will doubtless 
be possible to agree upon the basis of compensation which \vtX. 
make it both advantageous to the United States to buy, and not 
worth while for Spain to incur the expense of removing, tht 
heavy articles of ordnance still remaining on the Islands. 

AirncLi: it. 

Spa'ni, on f(i(j))i)i(/ ilic prci^ent treaty, shall place at liherti/ all 
jn'i'inners of inir a ml all tlioae detained or iinpriwned for political 
offen>ies in com^eqaence of the in>iurrcctions in Cuba and the Philip- 
piiici, mid of the war leifh the United States. Reciprocal 1 1/, the . 

I'liihd Statt.s shall /deer of lihtrtij (ill jrriso7iers of ivar made hj/ 
the Aniericiiii foras, and shall luyotiate fen- the ^iherty of nil 
Spnni-sii. jn-i^^onrr.s in tin power of the insurgents in Cuba and fhf 

I'hUippiriw. The donrnnind (f the United States shall fransjioii 
at its cost In Sj,air. and tin (/in-ern inent of Siin!)i shall transpari at 



OUll TIIEATY WITH SPAIN. 33 

its cost to the United States, Cuba, Porto Rico and the Philippines, 
eonformahhj to the situation of their respective dwellings, tlie jjris- 
oners placed or to be placed at Ubertij in virtue of this article. 

Release of Prisoners. — -In providing by this article for the 
mutual release of prisoners, Spain does not assume any responsi- 
bility, or undertake to perform any arduous duties, as the number 
of prisoners, which they have been able to take during the war, 
has been rather small, but there are prisoners confined in Cuba 
and the Philippines for political offenses, and those will all be 
released; even if this were not provided for in the treaty, the 
United States would be able to liberate those who have been con- 
fined for political offenses, or for that matter, for any reason 
whatever, as soon as the armies of occupation are in complete pos- 
session. 

The United States assume no responsibility for any prisoners 
not in their own possession, who, of course, will be at once re- 
leased, except so far as they are obliged to negotiate "for the lib- 
erty of all Spanish prisoners in the power of the insurgents in 
Cuba and the Philippines." As the United States will be the 
paramount powder in Cuba, and the Philippines, they will be able, 
as soon as Spain has withdrawn, to assert whatever power is 
necessary over the insurgents to obtain the liberation of those 
]n'isoners, and if necessary they can resort to the most stringent 
methods in order to accomplish the purpose. 

The Commissioners of the United States in this article have 
also shown the disposition of this Government to afford to a con- 
quered enemy every facility foi' promptly obliterating all re- 
membrances of the war, and of once more assrmiing a peaceful 
course of government, and in agreeing to transport the prisoners 
to their respective homes at its own expense they have simply 
provided for the repetition of the hitherto almost unparalleled act 
of generosity on the part of one belligerent toward another dur- 
ing actual hostilities, which occurred after the capture of Santi- 
ago. 

Mutual Renunciation of Claims. — Sovereign nations have 
the right to renounce claims not only for themselves, but aU<j on 



34 OUR TREATY WITH SPAIN. 

account of their subjects, as against each other, and it is optional 
whetlier or not they Avill, themselves, liquidate the claims of their 
own citizens. 

This arises from the fact that a ;iOvereign state can not be sued 
^vithout its own consent, and the only obligation which the United 
States will have under this clau:;e will be whatever Congress 
shall see fit to assume on behalf of the Government towards citi- 
zens of the United States. 

Citizens of the United States, however, can undoubtedly relv 
upon the fairness and justness of Congress, and the amount 
which eventually may have to be paid to liquidate any just 
claims will practically be added to the price expressed in the 
treaty for the ceded territory. 

At the present time probably over three hundred claims have 
been filed in the State Department for amounts aggregating in all 
possibly over twenty millions, but, of course, all of the amounts 
are "outside" figures, many of them being in the nature of claims 
for unliquidated damages, such as detention in prison, death of 
relatives, etc., and the actual aggregate amount of claims in- 
^•olved is probably a comparatively small percentage of their al- 
leged "face values" as filed. 

The extinguisliniont of claims of one nation against another is 
a usual clause in treaties of this nature. 

By Articles XIII, XIV and XV of the treaty of Guadaloupe- 
Uidalgo, with Mexico, in 1848, the United States engaged to 
assume and pay the claims of their citizens against the Mexican 
Eepublic, including those under arbitration, pursuant to previous 
treaties (U. S. Treaty, Volume 687-688), "and exonerating Mex- 
ico from all demands on account of the claims of citizens of 
the United States mentioned in the preceding article, and 
considering them entirely and forever cancelled whatever 
their amount may be, undertook to make satisfaction for the 
same to an amount not exceeding three and a quarter mil- 
lions of dollars." 
By Article XI of the Adams-de Onis treaty with Spain, in 
1810. "The United States exonerating Spain from all demands 



OUR TREATY WITH SPAIN. 35 

in future on account of the claims of their citizens to which 
the renunciations herein contained extend, and considering 
them entirely cancelled, imdortake to make satisfaction for 
the same to an amountnotexceedingfivemillionsof dollars." 

In both of these instances it seems that the limitation of 
amount was for the protection of the United States and not for 
the foreign powers, as there was no provision for the foreign 
powers being obliged to pay any additional amount (U. S. 
Treaty, Volume, page 1020). 

Under the treaty of Washington with Great Britain, of 1871, 
the payments by the respective governments, one to the other, of 
the awards of the tribunals established by the treaty were to act 
as full perfect and final settlements of all the claims referred to in 
the treaty, and the contracting powers further engaged that 

"every such claim, whether the same may or may not have 
been presented to the notice of, made, preferred or laid be- 
fore the tribunal or board, shall from and after the conclu- 
sion of the proceedings of the tribunal or board be consid- 
ered and treated as finally settled, barred and thenceforth 
inadmissable." 

The effect, therefore, of the first clause of this article is to en- 
tirely obliterate all claims which any citizen of the United States 
may have against the Government of Spain of any kind or nature 
whatsoever, provided it arose within the time mentioned in the 
article, and a similar state of affairs exists in regard to the claim 
of any citizen of Spain against the United States. This clause, 
however, does not in any respect relate to claims of private citi- 
zens of one country against the other. That subject will be re- 
ferred to in the notes under Article VIII and at the end of the 
treaty. 

ARTICLE VII. 

Spain and the United States mutually renounce by the present 
treaty all claim to national or private indemnity of whatever kind 
of one government against the other government which may have 
arisen from^ the beginning of the last insurrection in Cuba, anterior 
to the interchange of the ratifications of the present treaty, as also 



36 OUR TREATY WITH SPAIN. 

to all indemnity as regards costs occasioned by the war. Tlo 
United States shall judge and settle the claims of its citizens against 
Spain luhich are renounced in tliis article. 

Waiver of Indemnity by the United States. — This article, 
however, does relate to all claims which the Government of the 
United States might have against Spain, or rice versa^ if any 
could even be supposed to exist. 

Bv this clause the United States waives the claim of anv in- 
demnity whatever against Spain, either in the nature of redress 
for iiijuiy to private citizens, or for the expense of preparing for, 
and maintaining the war, or for the loss of the Maine. 

In this respect the United States has adhered to its own cus- 
toms, instituted as far back as 1803, when, by the Louisiana 
Treaty they paid for the territory on the condition that part 
should be applied to the payment of claims existing in favor of 
Americans against the French Government for spoliations prior 
to 1800, and which was afterwards followed in the Adams-de 
Onis treaty of 1819, with Spain, when Florida was ac- 
cepted at a stipulated price of $5,000,000, and the claims of the 
citizens effaced, and which was also pui-sued in 1848, when Cali- 
fornia, Nevada, New Mexico, and other territory were accepted 
as indemnity for the Mexican war, and the sum of $15,000,000 
paid as representing an excess of value over the cost of the war, 
but Mexico was obliged to pay $3,250,000 for claims of our citi- 
zens against that power. 

Other nations have not exercised the same leniency towards 
their defeated enemies. In 1870 Germany exacted from France 
not only Alsace and Lorraine, but 5,000,000,000 francs cash in- 
demnity, and only accepted that amount after having impover- 
ished the territory by the requisitions which had hvou levied 
upon it for the support of the invading army. A single day's re- 
quisition of the German Army when it occupied Versailles, is 
stated by Halleck (Baker's edition, ^^)l. 2, p. Ill; see also T. J. 
Lawrence, p. 375) as being 120,0uo loaves of bread, 80,000 
pounds of meat, 90,000 pounds of oats, 27,000 pounds of rice, 
7,000 pounds of colfee, 4,000 pounds of salt, 20.000 litres of 



OUR TREATY WITH SPAIN. 37 

wine, and 500,000 cigars, all of which the inhabitants wereforced 
to furnish in addition to the indemnity. 

The largest indemnity most recently exacted was at the end of 
ilic Japan-Chinese war, wlicn Japan not only retained the cap- 
tured Island of Formosa, bnt received a cash indemnity of nearly 
t.Avo hnndred million dollars, which probably would have been far 
greater had it not been for friendly offices of our Minister to 
China, Colonel Charles A. Denby, who, to some extent, acted as 
a mediator, and the able and successful efforts of ex-Secretary 
of State John AV. Foster, who was not then connected with the 
United States Government, and who represented the Chinese 
Government in the peace negotiations, and materially reduced 
the indemnity from the amount origiually demanded. 

Under all the established rules of International Law, the 
United States would have been justified in exacting an indem- 
nity equal to the entire expense of preparing for, and maintain- 
ing, the war, all the claims of their citizens, the estimated cost of 
occupation and the transformation of the country into revenue 
producing territory, together, if they saw fit, with an amount to 
be fixed by themselves in the way of punitive damages, to s,a^ 
nothing in regard to the "Maine." 

Whatever, therefore, these items would amount to, together 
with the $20,000,000 stipulated to be paid by the treaty, can be 
considered as the total cost of the Philippine Islands, Porto Rico 
and Guam. 

The final clause of Article VII places the question of adjudi- 
cation, and settlement of the claims of its citizens against Spain 
entirely in the hands of the United States. 

As above stated, that matter will be disposed by Congressional 
action. If that body follows the precedents already established 
in the cases of the French spoliation claims, claims against Spain 
for depredations in, and near, Florida, claims against Mexico, and 
the distribution of the Alabama award, a commission will be ap- 
pointed which can take proof as to all the claims of United States 
citizens, or a special court may be established for the purpose, or 
the claimants may be permitted to establish their rights according 



3S OUR TREATY WITH SPAIN. 

Tc laws to be enacted before the regular (,'oiirt of Claim?. 
Proceedings will differ from some of those provided in regard to 
the other cessions and settlements of claims, however, in that the 
Commissioners and Judges will undoubtedly all be citizens of the 
United States, and Spain will not have anv voice whatever there- 
in, which is proper, as no liability remains on her part. 

It is to be hoped and tru>=ted that there will not be the same de- 
lay in the adjudication and payment of claims existing against 
Spain at the present time in favor of our citizens, as happened in 
the cases of French spoliation, and Spanish-Florida claims; as to 
the former, some of them still remain unsettled. Many of them 
were not settled until more than three-quarters of a century had 
elapsed since Louisiana had been ceded partly in payment Ihere- 
for. 

ARTICLE VTIL 

In falfiUiiient of articles 1, 2 and 3 of this treaty Spain re- 
nounces in Cuba, and cedes in Porto Rico and the other West In- 
dian isles, in Guam and the Philippine archipelago, all buildings, 
moles, barracks, fortresses, estahlishnunts, public roads and othei' 
real property, which by custom or right are of the public domain, 
and as such belong to the crown of Spain. XevertJieless, it is de- 
clared that this renouncement or cession, as tlie case may be, refen'cd 
to in the previous paragraph, in no way lessens the property or 
rights luhich belong by custom or law to the peaceful possessor of 
goods of all kinds in the provinces and cities, public or private 
establishments, civil or ecclesiastical, corporations or wJiatever 
bodies have judicial [jtrsonality to acquire and possess goods in the 
above mentioned renounced or ceded territories, and tJiose of private 
individuals, whatever be their nationality. The said renouncement 
or cession includes all those documents wltich exclusively refer to 
said renounced or ceded sovereignty wltich exist in the archives of 
the peninsula. Wlien these documents existing in said archives 
only in part refer to said sovei'eignty, copies of said part shall be 
supplied, provided they be requested. Similar rules are to be re- 
ciprocally observed in favor of Spain with respect to the documents 



OUK TKEATY WITH SPAIN. 39 

existing in the archives of the before^ mentioned lislands. In the 
above mentioned renunciation or cession are comprised the rights of 
the crown of Spain and of its authorities over the archives and 
official registers, administrative and judicial, of said islands lohich 
refer to them and to the rights and properties of their inhabitants. 
Said archives and registers must be carefully preserved and all indi- 
viduah, wlihout exception, shall have the right to obtain, conform- 
ably to law, authorized copies of contracts, wills and other docu- 
ments which form part of notarial protocols or which are kept in 
administrative and judicial archives, luhether'Jhe same be in Spain 
or in the islands above mentioned. 

Transfer of Public Property. — This is the usual clause by 
which a ceding nation vests in the acquiring government the pub- 
lic property. Whatever belonged to the Crown in Porto Kico, 
the Philippines, and Guam, will now vest absolutely in the 
United States, and, as from the sale of public lands in Florida, 
Louisiana, California and the other acquired territories, the 
United States realized hundreds of millions of dollars, so from 
the uncultivated and unoccupied lands of these vast ten'itories, 
the United States will be able to realize in part, if not, as is likely, 
in whole, or even possibly with an excess, the expenditure which 
the acquisition of these territories has involved. 

In all of the prior cases of cessions, commissions were ap- 
pointed by which the public domain was ascertained, 
and rights of private owners established, and due re- 
gard was given to the rights of all private citizens, but no claims 
were allowed as to ownership of unoccupied territory that were 
not clearly proved, and which would not have been equally valid 
as to land within our own territory. In this respect, however, 
the Supreme Court has decided in a long series of cases, known 
as the French and Spanish land cases, that whatever would have 
been a good title had the land remained under the prior sover- 
eign, would be recognized after the acquisition, with the excep- 
tion that the United States had a right to make, as it did, a limi- 
tation as to area. 

In this respect see Act of March 3, 1891, entitled, "An Act to 



40 OUR TREATY WITH SPAIN. 

Establish a Court of Private Land Claims, and to Provide for the 
Settlement of Private Land Claims in Certain States and Terri- 
tories," which was a general act passed by Congress so as to cover 
all of the numerous cases involving claims of individuals 
for property in the various States and Territories, and which are 
based upon foreign gi-ants, deeds, and other modes of obtaining 
title, other than regular recorded transfer and actual occupation. 
See also Reynolds on Mexican and Spanish Claims, in which 
all of the law and most of the cases on these subjects have been 
carefully collated. 

Private Eights. — The second clause of Article VIII protects 
the private rights of the peaceful possession of goods of all kinds, 
Ixith individual and corporate, and it is merely an expression in 
the treaty of what has been decided to be the established law by 
the Supreme Court, in the cases affecting cession of territory and 
change of sovereignty. Tlie principal cases in the United States 
Supreme Court affecting the construction of treaties, so far as the 
lights of inhabitants and owners are concerned, arisine- from a 
c-liange of sovereignty, are: Foster v. Neilson, 2 Peters 253: 
llarrourt v. Gailiard, 12 AVheaton, 523; Garcia v. Lee, 12 Pe- 
ters, 511, p. 517. Tlic rule is expressed in two cases in the Su- 
preme Court as follows: 

Even ill cases of conquest, it is very unusual for the con- 
queror to do more than to displace the sovereign and assume 
dominion OA'er the country. The modern usage of nations, 
which has become law, would be violated: that sense of jus- 
tice and of right, which is acknowledged and felt by the 
whole civilized world, would be outraged, if private prop- 
erty should be generally confiscated, and private rights an- 
nulled on a change of the sovereignty of the country, by the 
Flori<la treaty. The people change their allegiance, their 
relatidii to their ancient sovereign is dissolved; but their re- 
lations to each other and tlirir rights of property remain un- 
disturbed. TInd Florida changed its sovereign by an act 
containing no stipulation respecting the property of indi- 
viduals, the rights of jiropcrty in all those who became sub- 
jects of citizens of the new government would have been un- 
affected bv tlie chanoo. Tt would have remained the same 



OUK TREATY WITH SPAIN. 41 



as Tinder the ancient sovereign. U. 8. v. Perchema)), 7 
Peters, 51. 

"By the law of nations, the inhabitants, citizens, or sub- 
jects of a conquered or ceded country, territory or province, 
retain all the rights of property which have not been taken 
from them by the orders of the conquerer; and this is 
the rule by which we must test its efficacy according to the 
act of Congress, which we must consider as of binding au- 
thority. 

A treaty of cession is a deed or grant by one sovereign to 
another, which transferred nothing to which he had no 
right of property ; and only such right as he owned, and 
could convey to the grantee. By the treaty with Spain the 
United States acquired no lands in Florida to which any 
person had lawfully obtained such a right by a perfect or 
inchoate title, and which this court could consider as prop- 
erty under the second article; or which had. according to 
the stipulations of the eighth article of the treaty, been 
granted by the lawful authorities of the king; which words, 
grants, or concessions, were to be construed in their broad- 
est sense, so as to comprehend all lawful acts which oper- 
ated to transfer a ria,-ht of property, perfect or imperfect. — 
U. 8. V. ClarTc, 9 Peters, 168. 
Prom these decisions it appears that the rights of 
private individuals under the modern and civilized rules 
of warfare are not affected by change of sovereignty, 
and while the treaty does not say that bona fide claims of citizens 
of one country against citizens of the other shall be protected, 
this sentence would seem to certainly create the inference that 
it was not intended in any way that the old rules of war, which 
resulted in the cancellation of such debts, should apply at the 
present time. In fact, the theory of the present treaty seems to 
be that peace having been restored, commercial relations between 
the countries and between the citizens will be restored to their 
former status. See note also on this subject after Article XVITI. 
BooJcs and ArcJiives.— This clause of Article VIII is very im- 
portant. It has not infrequently happened that books and 
archives have been taken away by the ceding power, and that 
thereafter it has been practically impossible to adjust the claims 



42 OUR TREATY WITH SPAIN. 

and establish the rights of citizens, Snd great trouble and expense 
has resulted from such action. As to Florida, for instance, it re- 
quired a special commission to examine the archives in Cuba and 
in Spain, to ascertain the condition of the titles. 

The provision for copying and transmitting archives, and af- 
fording reciprocal courtesies in this respect, will also save a vast 
amount of trouble in adjusting titles and property rights. 

Renunciation and Cession of Sovereignty. — This clause is evi- 
dently put in to avoid any questions relating to the administra- 
tive functions of the new government, and of vesting the in- 
choate and intangible rights of sovereignty in the new govern- 
ment, as well as the actual ownership of property. 

While it might be considered as an inseparable appurtenant, 
still the expression in the treaty is a wise precaution so to avoid 
any question in that regard. 

Copies of Documents. — The final clause of Article VIII, giv- 
ing an absolute right to parties interested to obtain copies of 
documents, is also a wise provision, and will save a great deal of 
diplomatic correspondence, and puts every person interested, 
from a property point of view, in the position of being able to 
prove his claim, if he has any. 

Aim CLE IX. 

SpanisJi subjects, natives of the peninsula, dwelling in the terri- 
tory ivhose sovereignty Spain renounces or cedes in the preseiif 
treaty, inay remain in said territory or leave it, maintaining in. one 
or the other case all tJteir rights of property, including the right tn 
sell and dispose of said propeiiy or its products, and moreover, they 
shall retain the rigid to cvercise tJieir industry, bw<iness or profes- 
sion, submitting themselves in tliis respect to ilie laivs which are 
applicable to other foreigners. Tn case they remain in tlie tci'ritory 
they may preserve their Spanish nationality by making in a regis- 
try office witJiin a year after the interchange of the ratifications of 
this trecUy, a declaration of their intention to preserve said nation- 
ality. Failing in tJtis declaration they will be considered as hav- 
ing renounced said nationality and as Jtaving adopted that of the 



OUR TREATY WITH SPAIN. 45 

territory in which they may reside. The civil rights and political 
status of the native inhabitants of the territories hereby ceded to the 
United States shall be determined by Congress. 

Article IX, relating, as it does, to the rights of citizenship, and 
the civil and political status of the inhabitants of tlie ceded 
territory, is one of the most important articles of the treaty. Ap- 
parently the Commissioners have covered every possible question 
that could arise. Thev have adhered to the established rules and 
customs of treaty expressions, as adopted and exercised by the 
United States, but at the same time have so modified them that 
the constitutional questions which will necessarily arise, as to the 
rights of the eleven million inhabitants (or thereabouts) of the 
ceded territory, can imdoubtedly be disposed of by the precedents 
alreadv established. 

The unlimited power of Congress to govern territory belong- 
ing to the United States has been established in a long series of 
decisions by the Supreme Court, but the status of the inhabitants, 
in the absence of special treaty stipulations, might have been con- 
trolled by that part of the 14th amendment, which relates to 
citizenship (see Appendix) ; but the decisions of the Supreme 
Court and the opinions of the leading publicists are all to the ef- 
fect that stipulations in a treaty of cession are paramount in es- 
tablishing the status of the inhabitants. In this respect Story 
says (Sec. 1328): 

"The power of Congress over the whole territory is clearly 
exclusive and universal, and their legislation is subject to 
no control, but is absolute and unlimited, unless so far as af- 
fected by stipulations in the cession or by the ordinance of 
1887, in which any part of it has been settled." 

The principal cases in the Supreme Court on this subject are: 
American Ins. Co. vs. Canter, 1 Peters, 511; Mormon Church 
case, 136 U. S., 1; Bank vs. Yankton, 101 U. S., 129; Murphy 
vs. Ramsey, 114 U. S., 15; /ones vs. U. S., 137 U. S., 202. 

Rawle (Edition of 1829, page 237) says, that Congress has al- 
ways been entitled to regulate the form of government of terri- 
tories subject only to treaty stipulations. 



44 OUR TREATY WITH SPAIN. 

In that respect the treaty stipulations are paramount to all Con- 
situtional provisions, and, in fact, it can be stated as a rule of law, 
that treaty stipulations are the only limitations by which Con- 
gress would be limited in establishing the status of the inhabi- 
tants. 

The last clause of Article IX places the entire power in the 
hands of Congress, and, therefore, the inhabitants of the ceded 
territory have no greater rights, under the cession by which they 
pass under the jurisdiction of the United States, than Congress 
shall confer upon them. 

The provisions according privileges to the inhabitants, how- 
ever, correspond with similar provisions in the prior treaties. 

Article III of the Louisiana Treaty (U. S. Treaty Volume, 
Page 332) provided: 

"That the inhabitants of the ceded territory shall be in- 
corporated in the union of the United States, and admitted 
as soon as possible according to the principles of the Federal 
Constitution to the enjoyment of all the rights, advantages 
and immunities of the citizens of the United States, and in 
the meantime they shall be maintained and protected in the 
free enjoyment of their liberty, property, and the religion 
which they profess." 
Articles V and VI of the treaty of 1819 with Spain for the 
cession of Florida (U. S. Treaty, Volume. Page 1018) are: 

V. The inhabitants of the ceded territories shall be se- 
cured in the free exercise of their religion without any re- 
striction, and all those who may desire to remove to the 
Spanish dominions shall be permitted to sell or export their 
effects at any time whatever, without being subject in either 
case to duties. 

VI. The inhabitants of the territories which His Catholic 
Majesty cedes to the United States by this treaty shall be 
incorporated in the union of the United States, as soon as 
may be consistent with the principles of the Federal Consti- 
tution, and admitted to the enjoyment of all privileges, 
riuhts and immunities of citizens of the United States." 

The treaty of Guadaloupe-llidalgo (U. S. Treaty. Volume, 
Page ()84) provided: 

Article VIII. — ^Mexicans now established in territories 



OUR TREATY WITH SPAIN. 45 

previously belonging to ^iexico, and which remain for the 
future within the limits of the United States, defined by the 
present shall be free to continue where they now reside, or 
to remove at any time to the Mexican llepublic, retaining the 
property which they possess in the said territories, or dispos- 
ing thereof, and removing the proceeds wherever they 
please, without their being subjected, on this account, to 
any contribution, tax, or charge whatever. 

Those who shall prefer to remain in the said territories 
may either retain the title and rights of Mexican citizens, or 
acquire those of citizens of the United States. But they 
shall be under the obligation to make their election within 
one year from the date of the exchange of ratifications of 
this treaty; and those who shall remain in the said territories 
after the expiration of that year, without having declared 
their intention to retain the character of jMexicans, shall be 
considered to have elected to become citizens of the United 
States. 

In the said territories, property of every kind, now be- 
longing to Mexicans not established there, shall be invio- 
lably respected. The present owners, the heirs of these, and 
all Mexicans wdio may hereafter acquire said property by 
contract, shall enjoy with respect to it guarantees equally 
ample as if the same belonged to citizens of the United 
States. 

Article IX. — The Mexicans who, in the territories afore- 
said, shall not preserve the character of citizens of the Mexi- 
can Republic, conformably wath what is stipulated in thd 
preceding article, shall be incorporated into the union of the 
United States, and be admitted at the proper time (to^ be 
judged by the Congress of the United States) to the enjoy- 
ment of all the rights of citizens of the United States, ac- 
cording to the principles of the Constitution; and in the 
meantime, shall be maintained and protected in the free 
enjoyment of their liberty and property, and secured in the 
free exercise of their religion without restriction. 

The Gadsden-Mexican treaty of 1853 (U. S. Treaty, Volume, 

page 696) provided, "that all the provisions of the tw^o articles 

of the Gaudaloupe-Hidalgo treaty just quoted, and that the 

same articles should also apply to all the rights of person? 

and property, both civil and ecclesiastical, within the same, 



46 OUR TREATY ^V1TH SPAIN. 

as fully and as effectually as if the said articles were herein 
again recited and set forth." 

Article III of the Russian Treaty of 1867 (U. S. Treaty, Vol- 
ume, 941) is as follows: 

"The inhabitants of the ceded territory, according to their 
choice, reserving their national allegiance, may return to 
Russia within three years; but if they should prefer to re- 
main in the ceded territory, they, with the exception of un- 
civilized native tribes, shall be admitted to the enjo_^^uent 
of all the rights, advantages and immunities of citizens of 
the United States, and shall be maintained and protected 
in the free enjoyinent of their liberty, property and religion. 
The uncivilized tribes shall be subject to such laws and reg- 
ulations as the United States may from time to time adopt, 
in regard to aboriginal tribes of that country." The Four- 
teenth Amendment had been adopted by Congress and was 
before the States for ratification when this treaty was con- 
cluded. 
Texas was not annexed by treaty. A treaty was proposed to 
the Senate, and failed. It required two-thirds of the Senate. 
A majority of both houses of Congress united, however, in a 
joint resolution, March 1, 1845 (See U. S. Statutes at Large), 
which specified the terms upon which Texas became a State of 
the Union. 

Hawaii was also annexed by the United States after a treaty 
bad failed, by joint resolution (See Appendix), the differ- 
ence between the annexation of Texas and that of Ha- 
waii being, that in the former instance Texas was ad- 
mitted as a State while TIawnii was admitted only as 
a Territory: but in both cases the joint resolution con- 
tained limitations as to the status and rights of the inhabitants. 
Ill the ease of Texas, slavery was prohibited north of 3().30, the 
line of the Missouri Compromise, and in the Hawaiian case the 
resolution provides: •'There shall be no further immigration of 
Chinese in the Hawaiian Islands, except upon such condi- 
tions as are now, or may hercal'ter be, allowed by the laws 
uf the United States; and ih. ( hinese, by reason of anything 
heretofore contained, shall be allowed to enter the United 
States from the Hawaiian Islands." 



OUR TEEATY WITH SPAIN. 47 

The record of the United States Government, from the earliest 
i'.cqnisition of territory, has been to control the status of inhabi- 
tants in newly acquired territory, by the terms of the cession, and 
all privileges and immunities acquired as a matter of right have 
been only those that have been given under the terms of the 
treatv of cession. 

ARTICLE X. 

♦ 

The inhabitants of tlie territones whose sovereignty Spai)i re- 
nounces or cedes shall have assured to them the free exercise of their 
religion. 

Guaranty of Beligious Freedom. — The notes and excerpts 
from the various treaties, under Article IX, apply equally to the 
guaranty of free exercise of religion by the inhabitants of the 
ceded territory, except that under this paragraph the United 
States apparently assumes the protection of worshippers in the 
Island of Cuba, and they have this right by virtue of the supreme 
power given to the President as Commander-in-Chief, under the 
rules of military occupancy. 

ARTICLE XI 

' Spaniards residing in tJie territories whose Sovereignty Spain 
cedes or renounces shall be subject in civil and criminal matters to 
the tribunals of the country imvhich they reside, conformably with 
the common laivs ivhich regulate their competence, being enabled to 
appear before them in the same manner and to employ the same 
proceedings as the citizens of the country to which the iribunal be- 
longs must observe. 

Status of Spanish Subjects. — By this article, citizens of Spain 
or inhabitants of Spanish descent, who choose to remain in the 
territory after the cession, while they must subject themselves to 
the same laws which control the inhabitants who become citizens^ 
or who remain there subject to such rules and regulations as Con- 
gress may prescribe, will still be entitled to all the privileges and 
immunities which those inhabitants are accorded by the United 
i5tates. 



48 OUR TREATY WITH SPAIN. 

It can hardly be conceived that the United States would deny 
to any of the inhabitants of Spain any of those privileges, and the 
clause simply makes a corresponding obligation to conform to 
tiic laws, in the consideration of the equal privileges accorded. 

ARTICLE XII. 

Jadicidl pvocealings pending on the intercliange of the rati- 
Jicaiions of this treatg in the territories over which Spain renoun- 
ces or cedes sovereignty shall be determined conformabig with the 
following rules : 

First — Sentences pronounced in civil cases between individuals 
or in criminal cases before the above-mentioned date, and against 
wliich there is no appeal or annulment conformably with the 
Spanish law, shall be considered as lasting, aiid shall be executed 
in due form by competent authority in tJie territory within which 
said sentences should be carried out. 

Second — Civil actimu between individuals, which on the afore- 
mentioned date have not been decided, shall continue their course 
before tlie tribunal in which the lawsuit is proceeding, or before 
that wJiich shall replace it. 

Third. — Criminal actions pending on the afore-mentioned date 
before the supreme tribunal of Spain against citizens of territory, 
which, according to this treaty, ivill cease to be Spanish, sJiall con- 
tinue under its jurisdiction until definite sentence is pronounced, 
but once sentence is decreed its execution shall be intrusted to com- 
petent authority of the place where the action arises. 

Conduct of Judicial Proceedings. — By this article the con- 
duct of civil and criminal actions pending in the ceded territories 
will not be interrupted by a change of sovereignty. Honest cred- 
itors will not be deprived of their remedies, and delinquent debt- 
ors and criminals will not be able to avail of the change, in order 
cither to avoid payment of just debts, or escape punishment for 
tiieir crimes. 

This article is in accord with the accepted rule of Interna- 
liuiial Law, that change of sovereignty should not exercise any 
c-lfect on local or personal interests. This is a rule which has been 



OUE TREATY WITH SPAIN. 49 

pronounced and sustained by the Supreme Court of the United 
States as a natural rule of law, and one that proceeds from a just 
interpretation of the mutual rights as between nations, as well as 
between the citizens of different nations and the governing pow- 
ers. See notes under Article VIII and cases there cited. 

ARTICLE XIII. 

Literary, artistic, and industrial rights of jyroperty acquired by 
Spaniards in Cuba, Porto Rico, the Philippines and other territories 
ceded on the interchange of ratifications of this treaty, shall continue 
to be respected. Spanish scientific, literary, and artistic ivorks not 
dangerous to public order in said territories, shall continue entering 
therein with freedom from all custom duties for a period often, years 
dating from the interchange of the ratifications of this treaty. 

Works of Art. — This article is another evidence of the pro- 
gress of the civilization upon internationl relations, result- 
ing from the advance of the arts and science; while in this 
instance, the results of science, literature and art are exempted 
from tariff charges for a period of ten years, the right of entry, 
and the exemption of duty, are both properly limited, so that 
they can not be available of for any detrimental or improper pur- 
poses; as there is no limitation as to the right of adjudication, it 
remains absolutely within the power of the Government of the 
territory — the United States — to determine to what extent the 
right of exclusion, on the gTound of danger to public order, ahall 
be exercised. 

ARTICLE XIV. 

S2)aiii may establish consular agents in the ports and places of 
the territories ivhose renunciation or cession are the object of this 
treaty. 

Consular Representation. — This is a positive recognition by 
treaty of a right which would doubtless have been accorded to 
Spain, whether any reference was made thereto in the treaty or 
not, as it has always been the custom of the United States not 
only to grant, but to in\dte, consular representation in our terri- 
tory by all foreign nations. 



50 OUR TREATY WITH SPAIN. 

The article further undoubtedly presages a renewal of not 
only of all consular, but also of diplomatic relations between the 
two countries, which so lately have been at war with each other, 
and the sooner those relations are established, and all memory of 
hostilities effaced, the better it will be for both nations, and all of 
the inhabitants thereof. 

ARTILLK XV. 

The government of either country shall concede for a term ot 
ten years to tJie merchant ships of the other the same treatment as 
regards all port dues, including those of entry and departure, light- 
house and tonnage dues, as it concedes to its oiun merchant ships 
not employed i)i the coasting trade. This article may be repudi- 
ated at any time by eitJier government giving previous notin fJirr^of 
six months beforeJiand. 

The notes under Article IV are to some extent also applicable 
to this article, except that the privileges in Article XV can be 
cancelled, and the article repudiated at any time by either Gov- 
ernment, on giving six months notice; this article, however, re- 
lates not only to the pi'ivileges which are to be accorded to Span- 
ish vessels in port? which have noAv become Americanized, bur 
nlso to the vessels of the United States in ports that remain under 
the control of Spain. 

The right to repudiate may or may not be exercised, but there 
are several instances in which a similar right of repudiation has 
not been exercised for many years. 

The agreement of 1817 with Great Britain as to the use and 
('onstruction of naval vessels on the Great Lakes, and which has 
resulted in the complete disannament of those great inland 
oceans, has a similar clause for termination on six months notice, 
but it lin? boon in effect uninterruptedly for eighty-one years. 

AUTWLE XVI. 
lie it understood tJiat ivltalever obligations an accqited under 
this treaty by the United States ^cith res})ect to Cuba are limited to 
the period of their occupation of the island, but at the end of said 
occupation they will advise the government that may he establi.«hed 
in the island thai it should accept the same obligations. 



OUR TREATY WITH SPAIN. 51 

Ohligations of Cuban Occupancy; Neiv Government. — The ob- 
ligations imposed upon this Government, by reason of its mili- 
tary occupancy of the Island of Cuba, have been discussed at 
length under Article I, and will not be again referred to here. 

Article XVI definitelv settles that the United States does not 
assume any permanent responsibilities under this treaty, as to 
Cuba, but only the obligations growing out of the fact that dur- 
ing the period of occupancy they will be bound to maintain law 
and order in the occupied territory. The provision that, at the 
end of the occupation, they will advise such government as may 
be established in the island that it should accept the same obliga- 
tions, does not create any positive obligation to obtain any such 
assumption. But it will unquestionably be the duty of the 
United States not to surrender the military control over Cuba un- 
til satisfactory assurances are given that the obligations of main- 
taining law and order, will not only be assumed by some govern- 
ment, but will be assumed by a government able to fulfil them ; 
in this connection it must be noted that none of these obligations 
in any way relate to an assumption of debt, for, as a matter of 
fact, they are exclusively confined to those obligations that are 
currently created by the exercise of sovereignty over the terri- 
tory, and not by virtue of any purchase or acquisition of territory 
entailing the assumption of debt. 

ARTICLE A'lTi. 

TJie jyi'csent treaty shall be ratified by the Queen Regent of Spain 

and the President of the United States, in agreement and with the 

approval of the Senate, and ratifications shall be exchanged in 

Washington luithin a delay of six months from tliis date, or earlier 

if possible. 

The exchange of ratifications is always provided for in the final 
articles of treaties, and the time within which the exchange shall 
take place definitely fixed. Eatification is always necessary in 
the case of a treaty concluded on behalf of the United States, and 
the powers given to Commissioners always refer to this require- 
ment, which, as already stated, is constitutional. (Sec Appendix.) 



52 OUE TREATY WITH SPAIN. 

It has not infrequently happened that treaties concluded by 
Commissionei-s have failed to meet the approbation of a two- 
rhirds majority of the Senate; this happened, amongst other in- 
stances, in the following cases: Treaty for Annexation 
of Texas; treaty for Annexation of San Domingo, 1870; treaty 
for Annexation of Hawaii; Bayard-Chamberlain fisheries treaty. 
1888; the treaty of peace in 1848, with Mexico, was not accepted, 
as a whole as it came from the Commissioners, but was condi- 
tionally ratified with certain amendments and omissions, subject 
to acceptance by Mexico, and when Mexico accepted the changes, 
the treaty became operative. 

Commercial Intercourse; Diplomatic Relations. — In tlu- 
text of the treaty nothing whatever appears as to re- 
vival of commercial intercourse and diplomatic relations between 
the two Governments. Possibly something appears in the pre- 
amble, but the text as cabled omits all the formal preambles, and 
those statements which usually precede the first article of a 
treaty, and which often determine the nature of the instrument 
for the purpose of its construction. 

It is still a mooted question in International Law whether or 
not a treaty of peace revives existing treaties, without a special 
provision to that eifect. In this respect the protocols showing 
the intention of the Commissioners may have an important bear- 
ing upon the subject. 

According to Woolsey (X. Y. 1MJ7, page 2G3): 

''Although a peace is a return to a state of amity, and 
among civilized nations, of intercourse, the conditions on 
which intercourse is adopted may not be the same as before 
the war. If a treaty contain no other agreement than that 
there should be peace between the parties, there would be a 
fair presumption that everything was settled again on its old 
basis, the cause of war alone being still unsettled. But 
treaties usually define anew the terms of intercourse; the 
general principles which govern the renewal of intercourse 
can not be laid down until it is first known what the effect 
of a war is upon previous treaties." 
The Enolish rule has been that all treaties are suspended, and 



OUR TREATY WITH SPAIN. 53 

must be revived, and that was the position wliich the British 
Commissioners took witli our Commissioners when the treaty of 
Ghent was negotiated — the conclusion of which, by the way, 
bears an interesting similarity to the present treaty, in that the 
treaty of peace that terminated the war of 1812 was concluded 
on Christmas Eve, 1814, and the treaty in the present instance 
Avill be handed on the same anniversary day in 1898, to the 
Executive by whom the Commissioners were appointed. 
. The rule then laid down by the British Commissioners, and 
which has always since been disputed by American authorities, 
was that the war had terminated all commercial treaties and priv- 
ileges, and that they were not revived by the treaty, in the ab- 
sence of a special stipulation. 

The legal question has never really been decided, and Wool- 
sey, on the same page above cited, asks the question, "But does 
w^ar end all treaties?" and discusses it at length in a way that 
shows it is still an open question. 

The practical effect in 1814 was that the United States lost the 
riirht of the inshore fisheries off the North x\tlantic Provinces, 
and Great Britain lost the right of the internal navigation of the 

Mississippi. 

Glenn states it on page 259, as follows: 

"A treaty of peace puts an end to all quarrels which re- 
sulted in the war that has just been w^aged, whether ex- 
pressly mentioned or not. It renders operative and bindmg 
certain treaties or international agreements, the operation of 
which has been suspended by the war." 
And he cites as authorities of the existing rule, Hall's Interna- 
tional Law, page 561-562; 3 Phillmore, Section 524 et. seq.; 
Calvo's International Law, Sections 3155-3159. 

This question is one, however, of minor importance, as the 
commercial relations between the two countries will have to be 
reinstated on a new basis, the commercial treaty in force when 
Avar was declared being the original treaty, negotiated in 1759, 
find which will need thorough overhauling in any event. 

The effect of peace, however, on the private relations of citizens 



54 OUR TREATY WITH SPAIN. 

of the two eoiuitries lately at wai', as between each other, 
is definitely settled. 

It was formerly considered necessary to make some special 
stipulation in this respect, as was done in the Treaty of 
Peace with (ireat JJritain, in 1783, but the generally adopted 
theory is now expressed by Glenn on pages 259, section 216: 

"Private rights, the right of prosecution of which is sus- 
pended by the war, are revived by the peace, even though 
nothing be said upon the subject in the treaty." 

Hall lias summarized the whole matter in the third clause of 
section 200, page 584, of his fourth edition: 

"3. In a general way, peace revives all private rights, and 
restores the remedies which have been suspended during the 
war; contracts, for example, are revived between private 
persons, if they are not of such a kind as to be necessarily 
put an end to by war, and if their fulfillment has not been 
rendered impossible by such acts of a belligerent govern- 
ment, as the confiscation of debts due the subjects to those of 
its enemy; the courts also are reopened for the enforcement 
of claims of every kind." 

In this respect Woolsey says, on page 265: 

"But private rights, the prosecution of which is inter- 
rupted by war, arc revived by peace, although nothing bo 
said upon the subject; for a peace is a return to a normal 
state of things, and private rights depend not so much on 
concessions, like public ones, as on common views of justice. 
And this includes not only claims of private persons, in 
the two cotuitries, upon mio another, but also claims of indi- 
viduals on the governmenl of the foreign country, and 
claims — private and not political — of each government 
upon the other existing before the war." The treaty pro- 
visions, however, in this case will control as to claims against 
cither government. (See notes under Article ^'TT.) 

The Supreme Court of I lie ruitcd States passed upon this 
question in 1^<iT, and in the case of Ihiiiijer v. AhboU, G Wall. 
532, decided that the "old decissions made when the rule of law- 
was thill war aiinulle(l all debts between the subjects of the 
belliiierents, are entitled to but little weight, even if it is 



OUR TREATY WITH SPAIN. 55 

safe to assume that they are correctly reported, of which, in 
respect to the leading case, there is much doubt. 

'^All of those decisions were made between parties who 
were citizens of the same jurisdiction, and most of them 
were made nearly one hundred years before the interna- 
tional rule was acknowledged, that war only suspended debts 
due to an enemy, and that peace had the effect to restore 
the remedy. The rule of the present day is that debts ex- 
isting prior to the war, but which made no part of the rea- 
sons for undertaking it, remain entire, and the remedies are 
revived at the restoration of peace." 

In the same case it was also decided that during the period of 
the war the statute of limitations does not run. There does not 
seem to be any decision during which the exact period of hostili- 
ties is defined as to the statute of limitations. 

Probably the period of suspension would commence with the 
declaration of war, and would not terminate until the treaty of 
peace was actually made, and the ratifications exchanged, as 
there would be no renewel of commercial right ; and probably no 
citizen of one nation would have any standing in the courts of the 
other until that event transpired. 

Numerous legal questions which will arise both under Consti- 
tutional and International Law, in considering and constructing 
a treaty of peace as important as the one which has just been con- 
cluded, can not, of course, be disposed of in a brief pamphlet 
prepared without the inspection of the actual text, and without 
the opportunity for extended research and examination of all of 
the numerous historical and legal precedents affecting it. and the 
foregoing brief statement is only intended to be used as a guide 
to direct those desiring to examine the subject, to the sources 
whence greater information may be obtained. 



APPENDIX. 57 



APPENDIX. 



EXTRACTS FROM CONSTITUTION OF THE 

UNITED STATES. 

We, the ])eople of the United States, in order to form a more perfect 
Union, establish justice, insure domestic tranquility, provide for the 
common defence, promote the general welfare, and secure the bless- 
ings of liberty to ourselves and our posterity, do ordain and establish 
this Constitution for the United States of America. _ 

Article 1, Section 1. All legislative powers herein granted shall be 
vested in a Congress of the United States, which shall consist of a 
Senate and House of Eepresentatives. 

Article 1, Section S. The Congress shall have power to lay and col- 
lect taxes, duties, imposts and excises, to pay the debts and provide 
for the common defence and genei-al welfare of the United States; but 
all duties, imposts and excises shall be uniform throughout the United 
States. 

To borrow mone^- on the credit of the United States. 

To regulate commerce with foreign nations, and among the several 
States, and with the Indian tribes. 

To establish an uniform rule of naturalization, and uniform laws on 
the subject of bankruptcies throughout the United States. 

To coin money, regulate the value thereof, and of foreign coin, and 
fix the standard of weights and measures. 

To provide for the punishment of counterfeiting the secui-ities and 
current coin of the United States. 

To establish postofltices and post roads. 

To promote the ^irogress of science and useful arts, bj^ securing for 
limited times to. authors and inventors the exclusive right to their re- 
spective writings and discoveries. 

To constitute tribunals inferior to the Supreme Court. 

To define and punish piracies and felonies committed on the high 
seas, and offences against the law of nations. 

To declare war, grant letters of marque and reprisal, and make rules 
concerning captures on land and water. 

To raise and support armies, but no appropriation of monej- to that 
use shall be for a longer term than two years. 

To provide and maintain a navy. 

To make rules :or the government and regulation of the land and 
naval forces. 

To i>rovide for calling- forth the militia to execute the laws of the 
Union, suppress insurrections and repel invasions. 

To provide for organizing, arming and disciplining the militia, and 
lor governing such part of them as may be employed in the service 
•f the United States, reserving to the States, respectively, the appoint- 



58 Al'PENDlX. 

meat of the oftic-ers, and the authority of training the militia according 
to the discipline prescribed by Congress. 

To exercise exclusive legishition in all cases whatsoever, over such 
District (not exceeding ten miles square) as may, by cession of par- 
ticular States, and the acceptance of Congress, become the seat of the 
Government of the United States, and to exercise like authoritj- over 
all places purchased by the consent of the legislature < f the State in 
which the same shall be, for the erection of forts, magazines, arsenals, 
dock yards, and other needful buildings; and 

To make all laws which shall be necessary and proper for carrying 
into execution the foregoing powers, and all other powers vested by 
this Constitution in the Government of the United States, or in any 
Department or oflicer thereof. 

Section 10. No State shall enter into any treaty, alliance or confed- 
eration; grant letters of marque and reprisal; coin money; emit bills 
of credit; make anything but gold and silver coin a tender in payment 
of debts; pass any bill of attainder, ex post facto law, or law impair- 
ing the oljligation of contracts, or grant any title of nobility. 

No State shall, without the consent of the Congress, lay any imposts 
or duties on imports or exports, except what may be absolutely nec- 
essary for executing it's inspection laws; and the net produce of all 
duties and imposts, laid by any State on imports or exports, shall be 
for the use of the Treasury of the United States: and all such laws 
shall be subject to the revision and control of the Congress. 

No State shall, without the consent of Congress, lay any duty of 
tonnage, keep troops or ships or war in time of peace, enter into any 
agreement or compact with another State, or with a foreign power, 
or engage in war, unless actualh' invaded, or in such imminent danger 
as will not admit of delay. 

Article II, Section 1. The executive power shall be vested in a Presi- 
dent of the United States of America. He shall hold his office during 
the term of four years, and, together with the Vice-President, chosen 
for the same term, be elected as follows: 

Article IT, Section 2. The President shall be Commander-in-Chief of 
the Army and Navy of the United States, and of the militia of the 
several States, when called into the actual service of the United States; 
he may require the opinion, in writing*, of the principal officer in each 
of the Executive Departments, upon any subject relating to the duties 
of their respective offices, and he shall have power to grant reprieves 
and pardons for offences against the United States, except in cases of 
im])eachment. 

He shall have power, by and with the advice and consent of the 
Senate, to make treaties, provided two-thirds of the Senators present 
concur; and he shall nominate, and by and with the advice and consent 
of the Senate, shall ap])oint .Ambassadors, other public ministers and 
consuls, judges of the Supreme Court, and all other officers of the 
United States, whose appointments are not herein otherwise provided 
for, and which shall be established by law: but the Congress may by 
law ve.st the ai)])oint incut of such inferior officers, as they think 
proper, in the I'resident alone, in the courts of law, or in the heads 
of Departments. 

The President shall have ])Ower to fill up all vacancies that may 
ha|)i)en during the recess of the Senate, by granting commissions 
which shall expire at the end of their next session. 

Section ;j. He shall from time to time give to the Congress informa- 
tion of the state of the Union, and recommend to their consideration 
such measures as he shall judge necessary and expedient: ho mny. on 



APPENDIX. 59 

extraordinary occasions, convene both Houses, or either of them, and 
in case of disagreement between them, with respect to the time of ad- 
journment, he may adjourn them to such time as he shall think proper; 
he shall receive Ambassadors and other public Ministers; he shall 
take care that the laws be faithfully executed, and shall commission 
all the ofKcers of the United States. 

Article IV, Section 3. New States may be admitted by the Congress 
into this Union, but nc new State shall be formed or erected within 
the jurisdiction of any other State, nor any State be formed by the 
junction of two or more States, or parts of States, without the consent 
of the legislatures of the States concerned as well as of the Congress. 

The Congress shall have power to dispose of and make all needful 
rules and regulations respecting the Territory or other property be- 
longing to the United States; and nothing in this Constitution shall 
be so construed as to prejudice any claims of the United States, or of 
any particular State. 

Section 4. The United States shall guarantee to every State in this 
Union a republican form of Government, and shall protect each of 
them against invasion; and on application of the legislature, or of the 
Executive (when the legislature can not be convened), against domestic 
violence. 

Article V. The Congress, whenever two-thirds of both Houses shall 
deem it necessary, shall propose amendments to this Constitution, or, 
on the application of the legislatures of two-thirds of the several 
States, shall call a convention for proposing amendments, which, in 
either case, shall be valid to all intents and purposes, as part of this 
Constitution, when ratified by the legislatures of three-fourths of the 
several States, or by conventions in three-fourths thereof, as the one 
or the other mode of ratification may be proposed by the Congress. 
Provided, That no amendment which may be made prior to the year 
one thousand eight hundred and eight shall in any manner affect the 
first and fourth clauses in the Ninth Section of the First Article, and 
that no State, without its consent, shall be deprived of its equal suf- 
frage in the Senate. 

Article YI. All debts contracted and engagements entered into, be- 
fore the adoption of this Constitution, shall be as valid against the 
United States under this Constitution, as under the Confederation. 

This Constitution, and the laws of the United States which shall 
be made in pursuance thereof, and all treaties made, or which shall be 
made, under the authority of the United States, shall be the supreme 
law of the land, and the judges in every State shall be bound thereby, 
anything in the constitution or laws of any State to the contrary not- 
withstanding. 

The Senators and Representatives before mentioned, and the mem- 
bers of the several State legislatures, and all executive and judicial 
officers, both of the United States and of the several States, shall be 
bound by oath or affirmation, to support this Constitution; but no 
religious test shall ever be required as a qualification to an^- office or 
public trust under the United States. 

First Amendment. Congress shall make no law respecting an es- 
tablishment of religion, or prohibiting the free exercise thereof; or 
abridging the freedom of speech, or of the press; or of the right of the 
people peaceably to assemble, and to petition the Government for a 
redress of grievances. 

Ninth Amendment. The enumeration, in the Constitution, of cei'- 
tain rights, shall not be construed to deny or disparage others retained 
by the people. 



60 APPENDIX. 

Tenth Amendment. The powers not delegated to the United States 
by the Constitution, nor prohibited by it to the States, are reserved to 
the States respectively, or to the people. 

Thirteenth Amendment. Section 1. Neither slavery nor involuntary 
servitude, excei)t as a punishment for crime whereof the party shall 
have been duly convicted, shall exist within the United States, or any 
place subject to their jurisdiction. 

Fourteenth Amendment. Section 1. All persons born or naturalized 
in the United States, and subject to the jurisdiction thereof, are cit- 
izens of the United States and of the State wherein they reside. No 
State shall make or enforce any law which shall abridge the privileges 
or immunities of citizens of the United States; nor shall any State 
deprive any person of life, liberty or property without due process 
of law; nor deny to any person within its jurisdiction the equal pro- 
tection of the laws. 

Fifteenth Amendment. Section 1. The right of citizens of the 
United States to vote shall not be denied or abridged by the United 
States or by any State on account of race, color or previous condition 
of servitude. 

au r. S. STATl'JKS AT J.AJieiE, 750— IH Ll.K ' KKl^ULU- 
TIOX, NO. 51, JULY 7, 1898. 



JOINT RESOLUTION TO PROVIDE FOR ANNEXING THE HA- 
WAIIAN ISLANDS TO THE UNITED STATES. 

Whereas, the government of the Republic of Hawaii having, in due 
form, signified its consent, in the manner provided by its constitution, 
to cede absolutely and without reserve to the United States of Amer- 
ica all rights of sovereignty of whatsoever kind in and over the 
Hawaiian Islands and their dependencies, and also to cede .-'nd transfer 
to the United States the absolute fee and ownership of all public, gov- 
ernment, or crown lands, public buildings or edifices, ports, harbors, 
military equipment, and all other public property of every kind and 
description belonging to the government of the Hawaiian Islands, 
together with every right and appurtenance thereunto appertaining: 
Therefore. 

Resolved by the Senate and House of Representatives of the United 
States of America in Congress assembled. That said cession is accepted, 
ratified and confirmed, and, that the said Hawaiian Islands and their 
dependencies be, and they are hereby, annexed as a part of the terri- 
tory of the United States and arc subject to the sovereign dominion 
thereof, and that all and singular the property and rights hereinbefore 
mentioned are vested in the United States of America. 

The existing laws of the United States relative to public lands shall 
not apply to such lands in the Hawaiian Islands; but the Congress of 
the United States shall enact special laws for their management and 
disposition: Provided, That all revenue from or proceeds of the same, 
except as regards such part thereof as may be used or occupied for 
the civil, military or naval i)urposes of the United States, or may b* 
assigned for the use of the local government, shall be used, solely for 
the lienefit of the inhabitants of the Hawaiian Islands for educational 
and other public jmrposes. 

LTntil Congress sliall ])rovidc for the governnicnt uf such islands all 
the civil, judicial and military powers exercised by the officers of the 
■existing government in said islands shall be vested in sucli person 



APPENDIX. 61 

or persons and shall be exercised in such maniiei- as the President of 
the United States shall direct; and the President shall have power to 
remove said oflicers and fill the vacancies so occasioned. 

The existing treaties of the Hawaiian Islands with foreign nations 
shall forthwith cease anJ determine, being replaced by such trendes 
as may exist, or as may be hereafter concluded, between the United 
States and such foreign nations. The municipal legislation of the 
Hawaiian Islands, not enacted for the fulfillment oi the treaties so 
extinguished, and not inconsistent with this joint resolution nor con- 
trary to the Constitution of the United States nor to any existing treaty 
of the United States, shall remain in force until the Congress of the 
United States shall otherwise determine. 

Until legislation shall be enacted extending the United States cus- 
toms laws and regulations to the Hawaiian Islands the existing cus- 
toms relations of the Hawaiian Islands with the United States and 
other countries shall remain unchang-ed. 

The public debt of the Eepublic of Hawaii, lawfully existing- at the 
date of the passage of this joint resolution, including the amounts 
due to depositors in the Hawaiian Postal Savings Bank, is hereby 
assumed by the Government of the United States; but the liability of 
the United States in this regard shall in no case exceed four million 
dollars. So long, however, as the existing government and the present 
commercial relations of the Hawaiian islands are continued as herein- 
before provided, said government shall continue to pay the interest 
on said debt. 

There shall be no further immigration of Chinese into the Hawaiian 
Islands, except upon such conditions as are now or may hereafter be 
allowed by the laws of the United States; and no Chinese, bj' reason 
of anything herein contained, shall be allowed to enter the United 
States from the Hawaiian Islands. 

The President shall appoint five commissioners, at least two of 
whom shall be residents of the Hawaiian islands, who shall, as soon as 
reasonably practicable, recommend to Congress such legislation con- 
cerning the Hawaiian Islands as they shall deem necessary or proper. 

See. 2. That the commissioners hereinbefore provided for shall be 
appointed bj^ the President, by and with the advice and consent of 
the Senate. 

Sec. 3. That the sum of one hundred thousand dollars, or so much 
thereof as may be necessarv', is hereby appropriated, out of any money 
in the Treasury not otherwise appropriated, and to be immediately 
available, to be expended at the discretion of the President of the 
United States of America, for the purpose of carrying this joint resolu- 
tion into effect. 

Approved, July 7, 1898. 



4VJ APPENDIX. 

PROTOCOL OF AGREEMENT 



UETWEEX 



THE UNITED STATES AND SPAIN, 

EMBODYING 

THK TERMS oF \ 1'. \S1S FOK TTIK ESTABLISHMENT OK PEACE 
lUTWEEN THE TWO COUNTRIES. 



Signed at Washi7igton August 12, 1898. 

William E. Day, Secretary of State of the United States, and His 
Excellency Jules'^Cambon, Ambassador Extraordinary and Plenipoten- 
tiary of the Eepublic of France, at Washington, respectively possessing 
for 'this pnrpose full authority from the Government of the United 
States and the government of' Spain, have concluded and signed the 
following articles, embodying the terms on which the two govem- 
meiits have agreed in respect to the matters hereinafter set forth, 
having in view the establishment of peace between the two countries, 

that is to say: 

ARTICLE I. 

Spain will relinquish all claim of sovereignty over and title to Cuba. 

ARTICLE II. 

Spain will cede to the United States the island of Porto Rico and 
other islands now under Spanish sovereignty in the West Indies, and 
also an island in the Ladrones to be selected by the United States. 

ARTICLE III. 

The United States will occupy and hold the city, bay and harbor of 
Manila, pending the conclusion of a treaty of peace which shall deter- 
mine the control, disposition and government of the Philippines. 

ARTICLE IV. 

Spain will immediately evacuate Cuba, Porto Rico and other islands 
now under Spanish .sovereignty in the West Indies; and to this end 
each government will, within ten days after the signing of this pro- 
tocol, appoint Commissioners, and the Commissioners so appointed 
shall, within thirty days after the signing of this protocol, meet at 
Havana for the purpose of arranging and carrying out the details of 
the aforesaid evacuation of Cuba and the adjacent Spanish islands; 
and each government will, within ten days after the signing of this 
protocol, also appoint other Commissioners, who shall, within thirty 
days after the signing of this protocol, meet at San Juan, in Porto 
Rico, for the ])urpose of arranging and carrying out the details of the 
aforesaid evacuation of Porto Rico and other islands now under Span- 
ish sovereignty in the West Indies. 

ARTICLE V. 

The United States and Spain will each appoint not more than live 
commissioners to treat of peace, and the coiuiuissioners so apjiointed 
shall meet at Paris not later than October 1, 1898, and ])roceed to the 
negotiation and conclusion of a treaty of peace, which treaty shall be 
subject to ratilication according to the respective constitutional forms 
•of the two countries. 



APPENDIX. 6:^ 

ARTICLE ^'I. 

Upon the conclusion and signing of this protocol, hostilities between 
the two countries shall be suspended, and notice to that effect shall 
be given as soon as possible by each government to the commanders of 
its military and naval forces. 

Done at Washington in duplicate, in English and in French, by the 
undersigned, who have hereunto set their liands and seals, the 12th 
day of August, 1898. 

[SEAL] WILLIAM K. DAY. 

[SEAL] JULES CAMBON. 



War Department, Adjutant-General's Office, 

Washington, July 18, 1898. 

The following, received from the President of the United States, is 
published for the information and guidance of all concerned: 

Executive Mansion, Washington, July 13, 1898. 
To the Secretary of War. 

Sir: The capitulation of the Spanish forces in Santiago de Cuba and 
in the eastern part of the province of Santiago, and the occupation of 
the territory by the forces of the United States, render it necessary 
to instruct the' military commander of the United States as to the 
conduct which he is to observe during the military occupation. 

The first eifeet of the military occupation of the enemy's territory 
is the severance of the former "Apolitical relations of the inhabitants, 
and the establishment of a new political power. Under this changed 
condition of things, the inhabitants, so long as they perform their 
duties, are entitled to security in their persons and property, and in 
all their private rights and relations. It is my desire that the inhab- 
itants of Cuba should be acquainted with the purpose of the United 
States to discharge to the fullest extent its obligations in this regard. 
It will, therefore, be the duty of the Commander of the army of occu- 
pation to announce and proclaim in the most public manner that we 
come not to make war upon the inhabitants of Cuba, nor upon any 
party or faction among them, but to protect them in their homes, in 
their employments, and in their personal and religious rights. All 
persons who, either by active aid or by honest submission, cooperate 
with the United States in its efforts to give effect to this beneficent 
purpose, will receive the reward of its support and protection. Our 
occupation should be as free from severity as possible. 

Though the powers of the military occupant are absolute and su- 
preme, and immediately operate upon the political conditions of the 
inhabitants, the municipal laws of the conquered territory, such as 
affect private rights of person and property, and provide for the pun- 
ishment of crime, are considered as continuing in force, so far as they 
are compatible with the new order of things, until they are suspended 
or superseded by the occupying belligerent; and in practice they are 
not usually abrogated, but are allowed to remain in force, and to be 
administered by the ordinary tribunals, substantially as they vyere 
before the occupation. This enlightened practice is, so far as possible, 
to be adhered to on the present occasion. The judges and the other 
officials connected with the administi-ation of justice may, if they 
accept the supremacy of the United States, continue to administer the 
ordinary law of the land, as between man and man, under the super- 
vision of the American Commander-in-Chief. The native constabulary 
will, so far as may be practicable, be preserved. The freedom of the 



,,4 APPENDIX. 

people to piiisue their lueustonied occupations will be abridged only 
wht.. it may be necessary to do so. 

While the rule of conduct of the American Commander-in-Chief will 
be such as has just been defined, it will be his duty to adopt measures 
of a tlitTerent kind, if. unfortunately, the course of the people should 
render such measures indispensable to the maintenance of law and 
order. He will then possess the power to replace or expel the native 
officials in part or aitog-ether, to substitute new courts of his own 
constitution for those that now exist, or to create such new or sup- 
plementary tribunals as may be necessary. In the exercise of these 
high powers the commander' must be guided by his judgment and his 
ev I -ience, and a high sense of justice. 

One of the most important and most practical problems with which 
it will be necessary to deal is that of the treatment of property and 
the collection and administration of the revenues. It is conceded that 
all i)ublic funds and securities belonging to the government of the 
(■(Mintry in its own right, and all arms and supplies and other movable 
jjroperty of such government, may be seized by the military occupant 
and converted to his own use. The real property of the state he may 
hold and administer, at the same time enjoying the revenues thereof, 
but he is not to destroy it save in the case of military necessity. All 
public means of transportation, such as telegraph lines, cables, rail- 
ways :ind boats belonging to the state, may be appropriated to his use, 
but, unless in case of military necessity, they are not to be destroyed. 
.Ml churches and buildings devoted to religious worship and to the 
arts and sciences and all schoolhouses are, so far as possible to be 
protej'ted; and all destruction or intentional defacement of such 
places, of historical monuments or archives or of works of science or 
art is prohibited, save when required by urgent military necessity. 

Private property-, whether belonging to individuals or corporations, 
is to be respected, and can be confiscated only for cause. Means of 
transportation, such as telegraph lines and cables, railways and boats 
may, although they belong to private individuals or corporations, be 
seized by the military occupant, but unless destroyed under military 
necessity, are not to be retained. 

While it is held to be the right of the conqueror to levy contribu- 
tions upon the enemy in their seaports, towns or provinces which 
may be in his military ])ossession by conquest, and to apply the pro- 
ceeds to defray the expenses of the war, this right is to be exercised 
within such limitations that it may not savor of confiscation. As the 
result of military occupation the taxes and duties payable by the in- 
habitants to the former government become payable to the military 
occupant, \inless he sees lit to substitute for them other rates or modes 
of contribution to the expen.scs of the government. The monies so col- 
lected arc to be u.sed for the purpose of paying the expenses of gov- 
ernment under the military occupation, stich as the salaries of the 
judges and the police, and for the payment of the expenses of the 
arinw 

Private Jjroperty taken for the use of the army is to be paid for 
wlien possible in cash at a fair valuation, and when pajment in cash 
is not i)ossible, receipts are to be given. 

All ports and j)laccs in Cuba which maj' be in the actual possession 
of our land and naval forces will be opened to the commerce of all 
neutr.'tl nations, as well as our own, in articles not contraband of war. 
upon payment of the |)rescribed rates of duty Avhich may be in force 
at the time of the importation. 

WILLIAM McKINLEV. 

Hv order of the Secretarv of War: 

H. r. CdKP.iN. Adjutant General. 



W44 



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